In the wake of COVID-19, there is a lot more discussion about home-made Wills or Will kits.
One of the questions that I am frequently asked is, “can we use a Will kit?”.
In Queensland, in order for a Will to be valid, the Will must be signed in the presence of two witnesses who attest to the Will-maker signing the Will in their presence.
There’s no doubt that having a home-made Will or a Will kit comes with risk especially if the Will is not drafted correctly.
However, if there is the slightest question as to whether the Will-maker had the necessary capacity to make a Will, then there may be a risk that the Will will be challenged. Sadly, proceedings in relation to the validity of a Will can be expensive not to mention time consuming.
What is testamentary capacity?
The term ‘testamentary capacity’ is the legal term used to describe the capacity required by a Will-maker to make a Will.
In order for someone to have testamentary capacity, they must be of ‘sound mind, memory and understanding’.
To be of ‘sound mind, memory and understanding’ the Will-maker must be able to:
- understand the nature of making a Will and its effects;
- understand the extent of their property of which the Will-maker is disposing; and
- comprehend and evaluate the claims that may be made against their estate. For example, if there are people that the Will-maker is leaving out of their Will, the Will-maker must be able to recall these people and understand that they may make a claim against their estate.
What if there is a concern in relation to the Will-maker’s capacity?
If there is a concern in relation to the Will-maker’s capacity, then additional steps should be taken as a precaution to protect the integrity of the Will.
Some of the steps that can be taken in these circumstances include:
A capacity assessment by the Will-maker’s regular doctor
The Will-maker should see their regular doctor for a capacity assessment.
However, in order for a doctor to be able to properly consider the matter of capacity in the context of a Will being made, the doctor should be made aware of the matters that the Will-maker needs to turn their mind to including the matters to determine understanding the nature and effect of making a Will, understanding the extent of their property and comprehending those who they may not be providing for and understanding the risk of a claim against their estate.
In some cases, I have seen the Will-maker visit a new doctor (not their regular doctor) for a capacity assessment.
A capacity assessment by a new doctor is never as good as the Will-maker’s regular doctor. This is because the interaction, relationship and history that the regular doctor has with the Will-maker generally extends over some time and accordingly is viewed more favourably.
Having the Will prepared by a solicitor
A solicitor is bound by ethical obligations when preparing a Will.
A solicitor who is experienced in preparing Wills should be ensuring that the process of making a Will is transparent for the Will-maker. The solicitor should be taking steps to ensure that the integrity of the Will is not comprised.
If a solicitor prepares a Will, then:
- The solicitor should be meeting with the Will-maker alone to take their instructions – the only exceptions to this would include perhaps another professional colleague such as the accountant or another solicitor and an interpreter (where the Will-maker speaks a different language or is deaf).
- If issues as to capacity of the Will-maker arise, the solicitor should conduct a preliminary assessment of their capacity. All in all, the solicitor should be able to comment on matters such as:
- whether the Will-maker has an understanding of the facts and issues to make an informed decision;
- whether the Will-maker appreciates the different options available to them and the consequences of each of the options;
- whether the Will-maker is able to articulate the reasoning behind their decisions;
- whether the Will-maker’s decisions are consistent with previous decisions or behaviour;
- whether the Will-maker appreciates the significance of their decisions.
- A solicitor must ensure they are taking notes in relation to the preparation and signing of the Will. A solicitor’s notes should be detailed enough to rely on in the event that there is a challenge to the validity of the Will including the date, the time, the people that were present at the moment, the issues that were discussed, the questions that were asked of the Will-maker etc.
Unfortunately, there is no hard and fast rule to ensuring that a Will is not challenged on the grounds of capacity.
However, as a rule of thumb, if there is a question in relation to the capacity of the Will-maker, a home-made Will should be avoided without seeking professional advice. The risk being that significant legal costs could be incurred later on disputing the validity of that Will.
If you have any questions in relation to this blog, please do not hesitate to contact me.
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