Will Disputes and Testamentary Capacity
The term testamentary capacity is relevant in will disputes as it concerns the question of the Will maker’s intention at the time of conveying their wishes. There is a long standing principle in all aspects of law that without capacity, a person is not capable of understanding the consequences of their actions and therefore is unable to instruct a solicitor.
Through the case of Aleta Gooley v Brett Gooley (2021), the court explains that lawyers when receiving instructions from a client making a will have a role to play in determining whether the will maker or testator has capacity. An experienced solicitor is used to dealing with people making wills and is attuned to the red lights that flash when a person who is of suspect capacity comes across their path, and therefore provides valuable evidence of the Testator’s testamentary capacity.
In the case of Chant v Curcuruto (2021), the court notes that a solicitor’s ability to make an assessment of testamentary capacity is based on the quality of contemporaneous notes and the level of enquiry and discussion on the part of the solicitor and with the will maker. Cognitive deficiencies can prevent the will makers from knowing and approving the contents of the will. The testator or will maker must know and approve the contents of their Will for it to be valid.
At Matthews Folbigg Lawyers, our experienced solicitors are knowledgeable in the test of testamentary capacity and are trained to notice any “red flags” suggesting a possible challenge to testamentary capacity. We ensure to become familiar with the will maker, understanding that our knowledge of the age, presentation and state of health of the will maker will impact the outcome of testamentary capacity will disputes in the court.
More Information
If you wish to obtain further information, advice or assistance in updating your Will, please contact one of our Will Lawyers in our Estate Planning team at Matthews Folbigg on 9635 7966, email us at estates@matthewsfolbigg.com.au or through the website www.matthewsfolbigg.com.au
DISCLAIMER: This article is provided to readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as a definitive or complete statement of the relevant law. Liability limited by a scheme approved under Professional Standards Legislation.
