Can a person without capacity have a will made for them?
If a person does not have testamentary capacity, that is the mental ability and understanding to make a will, the Court has the power to make a Will for that person.
What if a person makes a will beforehand and later loses the ability to change it due to mental impairment?
Consider the following scenario.
A person has made a will which leaves all their assets to their spouse. A few years later this person permanently separates from their spouse but forgets to amend their will. Some time later they become mentally impaired and they will no longer have the capacity to alter their will.
If this person were to die, their previous spouse would receive all their assets in accordance with the provisions of the will. No assets would be given to the person’s children or other important people that the person may have intended to have mentioned in their will if they had the capacity to change it.
This essentially means that their loved ones have been left out of a will and may have to pursue lengthy litigation to claim their right to the estate.
However, this unjust result may be avoided by having the Court authorize a will for the mentally impaired person that reflects the situation regarding the breakdown in marriage. In this case, it is crucial to get advice from a will dispute lawyer who can provide guidance on suitable courses of action.
Matthews Folbigg has a team of Wills Lawyers who specialise in drafting and providing advice if you need a will update or are disputing a will. If you would like further information on estate planning please contact us at 9635 7966.
