Capacity to make a Will


A Will is a very important step in any Estate Plan. One of the essential requirements for making a valid Will is that the testator (will-maker) must have the capacity to make a Will. This means that the testator must be capable of doing all of the following at the time that they give instructions to their solicitor to draft a Will:

  1. Understanding, in general terms, what a will is and the effect of making a Will;
  2. Understanding and appreciating the claims that may arise on their Estate;
  3. Understanding the extent of their property that is being disposed of under the Will; and
  4. Is not suffering any delusion or impairment of the mind that is material to the decision made in their Will.

Circumstances where a person may not pass this test could include where a person is suffering from a brain illness, injury or memory loss, has a limited understanding of the English language, or was affected by alcohol or drugs at the time that they instructed their solicitor. With our aging population and an increasing number of people with age-related illnesses (particularly Alzheimer’s disease), this has become a growing issue in NSW.

Is medical opinion relevant?

While medical opinion can assist a solicitor in making the assessment, it will not be binding and the solicitor must form an opinion for themselves on a case-by-case basis. For example, a medical diagnosis that a person is suffering from Alzheimer’s disease will not automatically mean that the person has lost legal capacity to make a will, as they may still be able to pass the four-stage test above. On the other hand, a report from a doctor that provides that the testator has capacity to make a will does not mean that a solicitor can obtain clear instructions from that person.

Why is it important for a testator to have capacity?

If a person does not pass the test, their will could later be challenged in the Supreme Court. If the Court finds that the will was not valid, it may refuse to distribute the property according to the deceased’s will. Litigation is a drawn out process, and can be highly stressful and expensive for representatives of the estate. All of these issues may be avoided by the testator ensuring that they have made a will before they have lost the capacity to do so. As long as you are over the age of 18, you are never too young to have a will.

Contact our Estate Planning Team today on 9525-8100 to discuss the importance of a will for you.