A Will is only legal if the person making it understands its implications. It is therefore essential that a patient makes their Will while the patient is competent and has sufficient mental capacity (referred to as ‘testamentary capacity’).
The relevant legal test of capacity requires the person to understand:
- the legal effect of making a Will (i.e. that it will determine what happens to their assets after death)
- what assets they have , and generally their value
- who the people are that they should consider in making a Will
If there is any question about a patient’s testamentary capacity to make a Will, health practitioners may be required to make a written assessment of a patient’s capacity. Such assessment should be attached to or otherwise kept together with the Will.
If a patient does not have the required testamentary capacity, the patient may still be able to make a Will in certain circumstances if an application to do so is approved by the Supreme Court.