Assessing Capacity for Wills
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