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How do you know if a person has capacity to make a Will?

To make a valid Will you (the 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 you are disposing of in your Will;
  • understand the claims to which you should give effect (e.g. the moral claims of family members); and
  • be of sound mind, memory and understanding.

Where there are concerns that a Testator:

  • does not understand the contents or effect of his or her Will;
  • may be being unduly influenced by another person;
  • shows signs of senility or dementia or that they are not of sound mind;
  • is close to death; or
  • has been significantly affected by a medical condition;

the Will should be witnessed by a qualified and practising medical practitioner. The medical practitioner should also sign a written opinion that the Testator has mental capacity. In making this assessment, it is common for a medical practitioner to carry out a Mini-Mental State Examination of the Testator. This examination is used by healthcare practitioners to check for cognitive impairment.

Where it is not practical to obtain a medical certificate, the lawyer drafting the Will can ask questions of the Testator designed to test their mental capacity.

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