A person’s ability to make a will is referred to as testamentary capacity. Essentially, this is a person’s ability to understand what they are doing and the effect of their actions. A person must have testamentary capacity at the time of making their will in order for the will to be valid. Legal adults are assumed to have such capacity. 

The concept was recently examined in a case before the Court of Appeal. The case (Carr v Homersham) was an appeal against a decision of the NSW Supreme Court, which initially found that the deceased person concerned did not have testamentary capacity when she made her will, thus deeming it invalid.

The deceased was thought to lack capacity because she had cut her niece out of her will completely, and then left everything to her carer.  This was because she believed her niece had made unsavoury comments about her mother, the deceased’s sister. The niece claimed that this false belief amounted to an ‘insane delusion’.

On appeal, the Court found that just because the deceased made the drastic and seemingly harsh decision to exclude her niece from her estate based on a belief that may or may not have been true, did not mean that she lacked testamentary capacity.

When making this decision, the Court of Appeal considered previous judgements made on the topic, which point to the idea that a person is still seen to have testamentary capacity even if their decisions are not particularly fair: “testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards” (Gleeson CJ in Re Estate of Griffith (dec’d); Easter v Griffith).

You can read more about the basics of testamentary capacity in one of our previous articles here.

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If you would like a will prepared, or have any questions in relation to the above, please contact our team of lawyers at The Quinn Group on (02) 9223 9166 or submit an online enquiry form today.