Can A Person With Cognitive Impairment Still Make A Will?
- RHC Solicitors
- Apr 2
- 5 min read
In Australia, any individual has the freedom to structure their Will as they see fit (presuming of course it fits within the legal requirements), including appointing an executor, beneficiaries and what inclusions to make. However, with an aging population, ensuring the validity of a Will requires the testator to have the necessary mental capacity, known as testamentary capacity.
As a law firm that has been in business for over forty years, we have seen an increase in our existing older clients contact us to discuss if they can update their estate planning. Where the physical and mental health of an individual has been impacted by time or other factors, a complex question emerges... "Does the client have capacity?"
Several factors can impact a person’s testamentary capacity, including advanced age or medical conditions, whether temporary or permanent. These may include dementia, an Acquired Brain Injury (ABI), psychiatric disorders, depression, bipolar disorder, or other mental illnesses and physical diseases that impact cognition.
What Is Testamentary Capacity?
Testamentary Capacity refers to a person’s cognitive ability to make informed decisions and enter into legal documents regarding their estate.
Broadly speaking, having capacity means that an individual can understand the nature and effect of the decisions they are making. Any specific test for capacity varies depending on the type of decision or document involved.
A person may have no capacity at all, such as being born with a significant intellectual disability, or they may lose capacity due to an acquired impairment or illness.
Do You Have Testamentary Capacity?
Testamentary capacity specifically refers to a person’s ability to make a valid estate document (E.g. a Will, Enduring Power of Attorney (EPOA) or Advance Health Directive (AHD)).
An individual over the age of 18 has testamentary capacity if they:
understand the nature of what they are doing
comprehend the extent of their assets and liabilities
comprehend that there are people that are entitled to inherit from their estate
do not suffer from a mental illness or disorder that impairs their ability to perform the above
These identifiers are set out under various pieces of case law, and are used to lawyers across Australia to determine if an individual has testamentary capacity.
In some circumstances, particularly with clients of advanced age or pre-existing mental or physical conditions, a letter of capacity from a licensed medical practitioner may also be sought. This is to ensure that any underlying health condition that is unknown to a lawyer (who, ultimately, is not a qualified medical practitioner) has been considered, to avoid a later claim on the estate on the grounds the individual did not have testamentary capacity.
Evidence Of Testamentary Capacity
In circumstances where there is a likely claim that an individual did not have testamentary capacity, there are a range of actions that can be taken prior to the execution of a Will to mitigate the risk of a future claim. These include detailed notes taken at the time by a lawyer, audiovisual materials such as security footage, and medical certificates from the testator's doctor.
It's important to note that a testator is presumed to have capacity unless evidence is presented that raises doubt.
When assessing whether a testator had the required testamentary capacity, the court may consider medical evidence from medical practitioners who treated or consulted the testator during their lifetime, or otherwise who did not assess the testator at the time the Will was made but have reviewed the testator's medical records and in their opinion hd the necessary capacity.
In addition to medical opinions, the court may also consider testimony from other individuals, such as carers, friends, and family members who interacted with the testator in the period leading up to and at the time of making the Will.
The court may also compare the current Will with previous Wills to identify any significant changes, such as newly named beneficiaries or drastically altered wishes. It may also assess the testator's relationships with beneficiaries and those who would typically expect to inherit, to determine whether the Will was affected by a lack of testamentary capacity.
Why Capacity Matters In Legal Transactions
Whether it’s preparing a Will, a contract, or an Enduring Power of Attorney (EPOA), an individual's ability to comprehend the decision they’re making is crucial. Without clear evidence of capacity, legal disputes may arise later, potentially leading to lengthy and costly delays to the estate administration.
It's important to note that capacity is not only relevant in estate planning but also in other legal areas. For example, it can help determine whether someone can continue to act as a company director or trustee of a trust.
Can A Person with Cognitive Impairment Make A Will?
Conditions such as dementia or other cognitive impairments do not automatically mean a person lacks testamentary capacity.
What matters is whether the individual can still:
Grasp the purpose of making a Will
Understand the extent of their assets
Comprehend the claims of those who may have an interest in their estate
As cognitive impairment affects people differently, every individual must be accessed on a case-by-case basis. Ultimately, it is up to the discretion of the lawyer as to whether a client has testamentary capacity.
What Happens When A Person Lacks Testamentary Capacity?
As alluded to above, where there are concerns for an individual's capacity when preparing a Will, the Will may be challenged.
RHC Solicitors has helped clients both defend a Will (by providing detailed file notes, records of appointments with the client, and relevant doctor's certificates), and scrutinise a Will on the grounds the individual did not have testamentary capacity.
Where a court determines that the individual lacked capacity, the Will may be deemed invalid. In such cases, the estate will either be distributed according to a previous valid Will or under intestacy laws.
In situations where it is clear that a person lacks capacity but still requires a Will, an application can be made to the court for a Statutory Will.
Statutory Wills are a Will authorised by the Supreme Court that has been applied for on behalf on an individual. There are strict requirements that must be met, including who can make the application, specific notifications that must be made to interested parties, supporting documents, and other information that must be provided.
Ultimately, the Supreme Court must be convinced that the terms of the Statutory Will reflect what the individual would have wanted if they had the capacity to make a Will themselves.
Need Advice On Testamentary Capacity?
If you have concerns about testamentary capacity or need assistance with your estate planning, our experienced estate lawyers are always ready to help guide you through this process. With our simple Wills starting from just $175 (Inc. GST), have peace of mind tomorrow by putting in place a secure estate plane today.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication is that of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
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