A person has capacity to make a Will if they understand what a Will does, know roughly what they own, understand who might expect to be provided for and aren’t affected by a disorder of the mind that distorts those judgements. In Western Australia capacity is assessed at the time the Will is made, not before or after.
What does the law require?
To make a valid Will, the Will maker or testator, must:
- be at least 18 years of age;
- understand and approve the nature and effects of making a Will;
- understand the extent of the property being disposed of in the Will;
- understand the claims to which they should give effect, meaning the moral claims of family members; and
- be of sound mind, memory and understanding.
These come from an English case, Banks v Goodfellow, decided in 1870 and applied by courts throughout Australia ever since. It’s more than 150 years old and it’s still the test.
When are there concerns about capacity?
Concerns arise where a testator:
- doesn’t understand the contents or effect of their Will;
- may be unduly influenced by another person;
- shows signs of senility or dementia or that they aren’t of sound mind;
- is close to death; or
- has been significantly affected by a medical condition.
Undue influence is a separate problem from capacity, though they often appear together. A person can have perfect capacity and still be making a Will somebody else wants. That’s why we see clients alone, without the family member who brought them in.
What should happen where there is a concern?
The Will should be witnessed by a qualified and practising medical practitioner, who should also sign a written opinion that the testator has mental capacity.
In making that assessment it’s common for a medical practitioner to carry out a Mini-Mental State Examination, which healthcare practitioners use to check for cognitive impairment.
Where it isn’t practical to obtain a medical certificate, the lawyer drafting the Will can ask questions of the testator designed to test their capacity and record the answers on the file.
Those file notes matter more than people may expect. If the Will is challenged years later, the contemporaneous record of what the testator said and how they said it is often the best evidence anybody has.
Is capacity all or nothing?
No. Capacity is specific to the decision being made and it can fluctuate.
A person may have capacity to make a simple Will leaving everything to their spouse and not have capacity to make one involving a testamentary trust, a business and competing claims from a blended family. Someone in the early stages of dementia may be clear in the morning and confused by late afternoon.
A diagnosis isn’t the answer to the question. Plenty of people with a dementia diagnosis have capacity to make a Will and the assessment is about this person, this document, this day.
What happens if a Will is made without capacity?
It can be set aside. The estate then falls back on the previous Will or on the intestacy rules if there isn’t one.
Getting there means litigation, usually between family members. It’s slow, expensive and it does lasting damage to a family. A medical certificate obtained at the time costs a fraction of what the argument costs later.
What if capacity has already gone?
A person who has lost capacity can’t make a Will. In limited circumstances the Supreme Court of Western Australia can authorise a Will to be made for someone who lacks capacity, but that’s a court application with its own process and likely significant cost.
The same applies to the documents that operate during your lifetime. An Enduring Power of Attorney and an Enduring Power of Guardianship can only be made while you have capacity. See EPOA and EPOG in WA: who makes decisions if you lose capacity.
The practical message is to do it early. Capacity is never a problem until suddenly it is and by then the options have narrowed.
Frequently asked questions
Can my parent make a Will after a dementia diagnosis?
It depends. A diagnosis alone doesn’t prevent it. What matters is whether they meet the test at the time the Will is made and the earlier that’s done the more straightforward it is.
Who decides whether someone has capacity?
The lawyer taking the instructions forms a view and where there’s any doubt a medical practitioner assesses it. If the Will is later challenged, the Court decides on the evidence available, which is why the file notes and the medical opinion matter.
Can I be present while my parent makes their Will?
We’ll see your parent alone for their appointment. Doing so protects them from any suggestion of pressure and it protects you from an allegation of undue influence later.
Worried about a parent or relative?
If you’re concerned about someone’s capacity to make or change a Will, talk to us before anything is signed. We’ll tell you what needs to happen and arrange a medical assessment where one is needed.
Book an appointment or call the Wills team on (08) 9220 4433.
This article is general information and not legal advice.
