Challenge a Will NSW
Contested Estates Division
Free consultation: 1800 529 529

What if the Will maker has lost capacity?

A Will is only valid if made by a person who is of sound mind, memory and understanding as at the making of the Will.

‘As at the making of the Will’ is an important distinction. Many of us have witnessed family members effected by or exhibiting the symptoms of dementia (such as forgetfulness) on occasion, while being perfectly rational and ‘sharp as a tack’ at other times. If the Will has been made during a ‘lucid’ period then the Will can be said to have been made by a person of sound mind, memory and understanding.

In this respect, the test of testamentary capacity is a legal test and not a medical test, although medical evidence can play a part in Court proceedings depending on the circumstances. Often however, the best evidence as to whether the Will maker lacked capacity will be the person who drafted the Will, usually a solicitor.

In order to determine whether the Will maker was of sound mind, memory and understanding as at the time of making the Will the Will maker must: 

• Understand the effect of making the Will.

• Understand the property being gifted.

• Understand the beneficiaries he ought to give consideration to.

Wills can also be set aside by the Court for Fraud or Undue Influence. 

If you have doubt about the validity of a Will because of a lack of capacity, fraud or undue influence then please get in contact with us to receive a no obligation assessment of your case by an experienced estates lawyer from the contested estates division, and at no cost.

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