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  • Gabriella Ferraro

The test of capacity in Wills

As people get older, the question of capacity comes into play when writing a Will. Do they have the necessary capacity to draft a valid Will. We consider this question in light of the case of Banks v Goodfellow (1870) 5QB549, which lays out the 4 tests of capacity. They are:


1. The Testator (or Willmaker) must have understood the nature of the act (of making the Will) and its effects


The Testator must understand that the Will they are signing is to take effect upon their death and that their property will then pass to people named or described, according to their instructions in the Will.


2. The Testator must have understood the extent of the property of which he or she was disposing


It is not necessary for a Testator to know every detail of his or her assets but they must have a general understanding of what their assets are.


3. The Testator should have been able to comprehend and appreciate the claims of friends and family members to which he ought to have given effect


It is only necessary that the Testator had a general understanding of the claims which relations might have had on their estate.


4. The Testator should not have been suffering from any “insane delusion” which affected his or her ability to comprehend and appreciate the claims of friends and family members on his or her estate


In Shaw v Chrichton (NSW Supreme Court, Court of Appeal 23 August 1995), Powell JA defined delusions as follows:


“Delusions: By definition, delusions are false ideas that cannot be corrected by reasoning, and that are idiosyncratic for the patient.”


The fact that a person was suffering from an insane delusion will not make the Will invalid unless the insane delusion affected the way in which the testator distributed their estate.


If you are making a Will, your doctor's input on the question of capacity may be important.

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