What if I think that the deceased was not of sound mind at the time of making the will?

Written by Terry Johansson | 13th September 2013

A testator must be of sound mind, or have had “capacity” at the time of executing their Will.

To have “capacity” means that the testator understands at the time of giving instructions to their solicitor and/or upon execution of their Will, the nature of what they are doing, the content of the Will and the effect of executing it.  The testator should also know and understand what assets are being disposed of in the Will and his/her moral obligations to certain people such as his/her spouse and children.

If the testator was suffering from some disorder of the mind at the relevant time, such as Alzheimer’s or dementia, then the testator may be considered to have lacked capacity and then invalidate the Will. Medical evidence will need to be produced in this situation.

The Will can be challenged if there is some doubt as to the testator’s capacity.  Evidence must be provided to the court to show what the testator’s state of mind was at the relevant time.  This evidence will usually be given by:

  • the witnesses to the signing of the Will,
  • any witnesses at the time the testator provided instructions for the Will,
  • the solicitor who drafted the Will; and
  • medical practitioners, specialists and carers.

It is not an indication of incapacity if the testator is motivated by malice in disinheriting their family or cutting a particular family member out of his/her Will altogether.

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