Preparing a will is something most people choose to do at some point in time in their lives. If a person leaves it to when they are frail and ill issues will arise concerning their mental and legal capacity. In Australia there are four issues that must be considered in order to figure out if a person has the mental capacity to make a will. These are:
- The person must be able to understand the situation.
- The person must know what the consequences are in making a decision.
- The person must be able to understand what the risks and benefits are in making a decision.
- The person must be able to communicate the decision they are making.
Just because you have a mentally disabling condition does not automatically mean you do not have capacity to make a will. If, for example, you have Alzheimer’s disease or dementia, you may still be able to make a will if you can satisfy the above four points.
If you have enough mental capacity to satisfactorily make decisions for a particular situation, then this is acceptable. If you cannot understand the nature and effect of a decision at the time the decision is made, then this is not acceptable.
One thing to stress is that the person making the will will be assessed at the point in time when they are making the decision. They need to have mental capacity at the point in time when the will is executed. If you lose mental capacity between the time the instructions are given and the time of the will’s execution, the relevant assessable time is when the instructions were given. The person making the will does not need to understand every clause, however, they do need to understand that they are making a will and the consequential effects of the main clauses of the will.
In Australia, every adult over the age of eighteen is presumed to have legal capacity. If there is a suggestion that a particular adult does not have legal capacity, it is up to the person making the will to prove on the balance of probabilities that that person does have legal capacity. In evaluating the situation, the courts tend to regard highly independent third parties who do not have things to gain in rebutting the presumption.