Whether the person who made the will had the requisite mental capacity is one of the grounds for initiating a will dispute.
Mental capacity is called ‘testamentary capacity’ in the context of wills and is required for a person to make a valid will. The test for mental capacity comes from Banks v Goodfellow (1870), which requires a person making a will to:
- understand the nature of the act and its effects;
- understand the extent of property of which he or she is disposing;
- be able to comprehend and appreciate the claims to which he or she ought to give effect and that no disorder of the mind would bring about a disposal of it which would not have been made otherwise.
Should a person fail to meet these requirements at the time the will is executed, they will lack the requisite mental capacity. A will made by a person lacking mental capacity is void.
It is possible to initiate a will dispute over conditions affecting a person’s mental state, such as dementia, senility and schizophrenia. However, these conditions do not necessarily negate mental capacity. As long as a person is able to satisfy the above test at the time of execution, a will can be validly executed.
The person bringing a will dispute must demonstrate that there is a doubt in the capacity of the person who made the will. Following this, a proponent of a will must fully demonstrate that the person who made the will had the requisite level of mental capacity at the time of execution.
A demonstrative example of the operation of the test for mental capacity can be seen in the decision of Hobhouse v Macarthur-Onslow [2016] NSWSC 1831. The deceased, Lady Dorothy Wolseley Macarthur-Onslow, executed a will in 1988 which provided for an equal distribution of her estate between her two children; Lady Hobhouse, the plaintiff, and Mr Macarthur-Onslow, the defendant. In 2002, Lady Macarthur-Onslow was being treated for dementia. In 2004, she executed another will, which was to be the final one before her death in 2013. The effect of the second will was to permit Mr Macarthur-Onslow control to distribute a substantial portion of the property of the deceased, including to himself. This will was disputed by the plaintiff on the basis of a lack of capacity of her mother to execute the will.
The Court found that her mother had testamentary capacity at the time of execution and the will dispute was unsuccessful on this basis. However, the Court accepted a separate argument from the plaintiff that the deceased did not know and approve of some of the clauses of the will. This led to the Court severing these clauses which would have led to an unequal distribution of the will, to ensure an equal distribution as intended by the deceased.
Therefore, understanding the requirements of mental capacity is important in the process of creating a will to prevent a will dispute between family members. It is also important in succession, if a will dispute is required.
If you would like further information, please contact a Will lawyer on 9635 7966 or through the website www.matthewsfolbigg.com.au
