In order for a will to be valid the person who makes the will (the testator) must have testamentary capacity. If there are doubts about the testamentary capacity, the will can be challenged in a court.
For a testator to have testamentary capacity, that person must:
* understand the nature of a will and the effect it will have on their deceased estate;
* know in general terms the nature and breadth of the estate assets;
* comprehend who has a reasonable claim on the estate and who should inherit; and
* not suffer from a medical or mental condition that impairs their judgment.
In the recent case of In the Estate of Frederick Allwood [2023] NTSC 72 a testator’s 2018 will was invalidated by a court even though the solicitor who prepared it was of the view that the testator had testamentary capacity. However, the evidence established that the testator was seriously mistaken as to his financial position. He told the solicitor his estate was worth $3000.00 whereas it was worth $350,000.00. In addition, the testator suffered from dementia at the time the will was made.
Therefore, it should never be assumed that just because a will has been signed and witnessed that it will be valid. A solicitor taking instructions for the preparation of a will bears an important responsibility to assess the testamentary capacity of a testator especially in the case of elderly clients.
November 2023