How to determine ‘capacity’ to make a Will

Where there is any doubt about a person’s mental capacity great care must be taken when making a will as it may be subject to challenge. It is always wise in such a case to have the will prepared professionally, and to have it witnessed by the person’s doctor who could testify later as to the person’s mental capacity.

In general terms, a person will have the necessary capacity if they:

  • know what a Will is;
  • can recall the details of the assets they are disposing of;
  • can remember those people that they would ordinarily provide for in their Will;
  • give consideration to those people who would normally benefit under the Will; and
  • are not delusional or suffering from a mental illness at the time they sign their will.

Who decides on capacity?

It is not the role of a lawyer to be an expert in assessing the capacity of their client. However, a lawyer can be involved in carrying out a “legal” assessment of the Will maker’s capacity.

If there is a question about someone’s mental capacity to make a will, then an opinion, preferably in writing, should be obtained from that person’s treating doctor. The opinion should state that the Will maker has the required testamentary capacity to make a Will.

Could the Will be challenged?

It is important to address the issue of capacity in all circumstances because a Will can be challenged on the basis that the Will maker did not have sufficient capacity to make the Will. This arises most frequently where the Will maker is ill, for example, in hospital on medication or elderly and suffering from dementia.

It is difficult to set aside a Will on grounds that the Will maker lacked testamentary capacity if the Will is prepared by a competent lawyer who took appropriate instructions from the Will maker and was satisfied the Will maker had the requisite testamentary capacity to make a will.

What is the lawyer’s role in determining capacity?

 It is not the role of a solicitor to be an expert in mental capacity assessment of their client. However, a solicitor can be involved in carrying out a “legal” assessment of their client’s mental capacity which involves:

  • Making a preliminary assessment of mental capacity – looking for warning signs or “red flags” using basic questioning and observation of the client.
  • If doubts arise, seeking a clinical consultation or formal evaluation of the client’s mental capacity by a clinician with expertise in cognitive capacity assessment.

People whose cognitive capacity is impaired may be vulnerable to exploitation by others and may not be able to protect their own legal interests. Solicitors have ethical duties to the court, their clients and to the administration of justice to ensure that the interests of their clients are promoted and protected at all times.

It is prudent to ensure the lawyer is made aware of the potential ‘capacity’ issue because it may be necessary for the Will maker to first attend upon their treating doctor who can carry out an assessment to determine capacity prior to making an appointment to see a lawyer.

If this is relevant to you or your family then please call us on (02) 8014 5885 or email

By |2018-10-29T14:12:11+10:00July 9th, 2017|Uncategorized|