Contesting a Will:
Lack of Testamentary Capacity
Who can challenge a Will?
Will Maker Without Testamentary Capacity
A Will can be contested on the grounds that the Will maker lacked testamentary capacity at the time of creating the Will.
This means that you may challenge a Will if you believe that it does not reflect what the deceased truly intended as they did not have the mental capacity to comprehend the consequences of their decisions.
Section 57(1) of the Succession Act provides a list of people who are eligible to make a claim on the estate of the deceased. These ‘eligible people’ include:
- Spouse of the deceased at the time of the deceased’s death;
- De-facto partner of the deceased at the time of the deceased’s death;
- Child of the deceased;
- Former spouse of the deceased;
- Person who was at any time wholly or partly dependent on the deceased, and additionally, a resided in the same household with the deceased; and
- Person who had a close personal relationship with the deceased at the time of their death.
At a glance, it may seem like you are eligible, however it is important to first consult a solicitor as they will be able to determine whether you are in fact legally eligible.
What is Testamentary Capacity?
Testamentary capacity is a requirement for a Will to be binding and it refers to the person’s mental ability to comprehend the Will that they are creating and altering.
Generally, the testator will have testamentary capacity if at the time of signing the Will comprehends:
- That they are executing a Will and the effect of doing so;
- The general nature and extent of their property; and
- Any moral obligations that they may have towards friends, family or external parties.
Additionally, it must also be demonstrated that they are of sound mind at the time the Will was executed as any evidence of a mental disorder may have a fatal impact on the validity of the Will.
Setting Aside a Will
The Supreme Court of New South Wales has the power to set aside a Will if they determine that the deceased did not possess mental capacity at the time of executing the Will.
This is set out in section 18 of the Succession Act 2006:
“The Court may, on application by any person, make an order authorising a will or part of a will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity, or a will or part of a will to be revoked on behalf of a person who lacks testamentary capacity.”
The Court may rectify the Will if the Court is satisfied that the Will does not carry out the testator’s intentions, however there is a statutory limit imposed of twelve (12) months after the date of the death of the deceased – only in niche circumstances can the Court extend the limit.
To prove that the deceased lacked mental capacity, the overall circumstances of the matter must be examined – which a highly skilled lawyer can assist with.
Some things include:
- Receiving expert opinion from the doctor who was treating the deceased prior to their death;
- Contacting the solicitor who has assisted with the creation of the Will to determine where they put in place measures to ensure that the testator possessed testamentary capacity; and
- Speaking with medical staff or people who interacted with the deceased at the time.