There is new legislation which now allows people without testamentary capacity, to have wills authorised by the courts. Before we discuss this new legislation, it is important to establish what testamentary capacity is.
There was a case heard in 1870, that all these years on, still provides authority for the criteria for establishing testamentary capacity. The testator:
a) Understands that he or she is giving instructions for the disposal of his or her property after their death;
b) Can recollect the extent and character of his or her property and dispose of it with understanding and reason
c) Can recall and understand the claims of potential heirs, such as his or her family; and
d) Is not suffering from any disorder of mind such as delusions or hallucinations which influence his or her decisions.
For a non-medically trained lawyer, the capacity of a testator may not always be apparent, in which case, a medical opinion would be sought.
The Supreme Court of NSW was recently faced with a person who had lost testamentary capacity permanently with family members who were all either very old, or suffered from terminal illness. Chances were that the incapacitated person was going to outlive all of his family, and at his death, his assets would be vested in the crown due to lack of beneficiaries pursuant to intestacy law. Next week we’ll discuss the new law, and how it helped an incapacitated person disburse their property in accordance with their wishes.
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This is intended for general information and does not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought.