Assessing Capacity

You may have concerns about a person’s capacity to make a Will.  A person’s capacity may be questioned by others if they:

• Are very elderly or frail

• Are living in residential aged care

• Have been diagnosed with a serious illness or condition affecting their capacity.

• Are in hospital receiving treatment, including surgery or medications that affect the central nervous system (for example strong pain killers, antipsychotics, chemotherapy)

• Have mental health concerns

• Want to write or change their Will urgently

In these cases it may be helpful to suggest that the person have a Capacity Assessment to provide useful evidence of capacity if the Will is contested later on.

You may also be asked to assist with arranging an assessment of a person’s testamentary capacity.  This is different from the more general definition of capacity.  A person is usually thought to have testamentary capacity if they can demonstrate that they understand:

• what a Will is

• who their beneficiaries are

• in general terms what their property and assets are

For more information on Capacity Assessments, refer to the Capacity Toolkit available from the Department of Attorney General and Justice.