Testamentary Capacity and Making a Will
Our Estates team at Hatzis Lawyers deal with a wide range of Wills and Estate planning enquiries and advices and are immersed in various case scenarios extenuating the diverse nature and complexity of needs involving Will makers, executors and beneficiaries under a Will.
For a lot of people, making or updating their Will does not list high on their priorities and often only becomes prevalent when they’re either going over seas, have experienced a drastic change in their personal circumstances or when they’re in their retirement years.
The unruly concern for some of our clients is when either they or their loved ones are in a state when their testamentary capacity is uncertain. The general rule is that a Will maker must have the capacity to understand what is involved in making a will and then to sign the Will.
Wills have been declared to be invalid by the Supreme Court where the maker did not have testamentary capacity.
The general principles involved in whether a Will maker has adequate testamentary capacity are as follows: –
- The Will maker must be aware and appreciate the significance of the act in law upon which he or she is about to embark;
- The Will maker must be aware at least in general terms of the nature, extent and value of the estate over which he or she has disposing power;
- The Will maker must be aware of those who may reasonably be thought to have a claim upon the estate and the basis for and nature of the claims of such persons;
- The Will maker must have the ability to evaluate and discriminate between the respective strengths of the claims of such persons.
Where then does that leave someone who had an intention to change their Will prior to them losing capacity or someone with an intellectual impairment wishing to leave their estate to their loved ones?
The answer lies under section 21 of the Succession Act 1981 where the Court may authorise a will to be made, altered or revoked for a person without testamentary capacity.
The recent case of Van der Meulen v Van der Meulen  QSC 33 presented an important decision outlining the features for determining whether or not, pursuant to section 21 of the Succession Act, a Court should authorise a Will to be made for a person without testamentary capacity.
This case concerned the application of a forty four year old intellectually impaired man, Christopher Millar, who despite his intellectual impairment, had made a number of property and financial transactions in his life. In 2012 Mr Millar had a Will drafted where he proposed that his estate be divided between his sister and Mother, with the contingency that if his Mother predeceased him, then her share was to be divided amongst his nieces and nephews.
His Honour Jackson J granted leave for the application to be heard considering it appropriate in the circumstances, particularly given that in all likelihood Mr Millar’s previous Will was likely to be invalid and in the same proceeding authorised a Will to be made for Mr Millar.
In determining whether to authorise the proposed Will under section 21, the Court asked whether the proposed Will was the Will that Mr Millar would have made if he did have testamentary capacity. It was important that Mr Millar had expressed the same intention over an extended period of time.
In presenting their reasons, the Judges were clear in finding that there was “no definitive principle” that could be used to determine future cases of this nature; rather each application must be determined according to its specific facts.
This recent case establishes that each application relating to testamentary capacity is to be assessed on its own facts and merit.
If you have any questions with respect to this area of the law, please don’t hesitate to contact our Estates team.
We will be more than happy to sit down, take your comprehensive instructions and give you the best advice possible.
Written by: Paul Pitsaras LL.B I.B of Hatzis Lawyers.
 These principles were confirmed in Public Trustee of Qld -v- Martin & Ors  QSC 279 where a number of long-standing authorities in this area were examined.