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  • Writer's pictureNicholas Rose

What is testamentary capacity?

When lawyers talk about testamentary capacity, they are referring to whether or not a person has the mental ability to make a valid will. Legally speaking, capacity is not a simple “black and white” issue but multifaceted and always specific to the act being engaged in or document being drafted.


There are different legal definitions for:

  • the capacity to consent to medical treatment,

  • the capacity to refuse medical treatment,

  • the capacity to manage financial affairs, and

  • the capacity to execute a range of documents from those that deal with healthcare and finances, to simple contracts or business agreements.

Each of these requires implementation of a different test to determine whether someone has ‘capacity’. For wills, it is the 150 year old test outlined in Banks v Goodfellow.


The Banks v Goodfellow test can be broken down into four elements. Does the person:

  1. understand the nature and effect of making the will;

  2. understand the extent of the property to be dealt with by the will;

  3. understand who would have a legitimate claim on the estate;

  4. have a mind free of any disorder or delusion that would affect their bequests of any assets.

These elements are not the same as the medical concepts of capacity, which predominantly rely on answering whether someone is capable of consenting to a treatment. Just because an individual is under a Guardianship order or cannot manage their finances independently is not sufficient to say that they do not have testamentary capacity.


If you are concerned about making a will, or assisting a loved one to make one when they might be quite elderly or suffering from a cognitive impairment, contact our team today. At Jenkins Legal & Advisory we back up any testamentary capacity assessment with referrals to specialists to confirm the specific issues that relate to this type of capacity. We can also advise about making applications for court ordered wills if you believe a loved one who has lost their capacity should have a will.


If you need assistance in relation to estate planning matters, please contact Jenkins Legal & Advisory on 02 4929 2000 or email office@jenkinslegal.com.au


This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.


 

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