Six Tips for Treating Testamentary Capacity Challenges
Making sure a will truly represents someone's wishes is important. But what if they can't make a valid will themselves? In these situations, understanding legal ways is key. WebWills shares six helpful tips about creating wills for those who might lack the capacity, explaining statutory wills and recent legal cases.
1. Understanding Testamentary Capacity
Testamentary capacity means knowing what making a will means, being aware of your property and who might inherit it, and not having any mental issues that affect your ability to make decisions.
2. Challenges and Consequences
The inability to make a will can make it hard to express what someone wants for their belongings. When this happens, the laws about who gets what when there's no will may not match what the person wanted, causing unexpected results.
3. Statutory Wills in Victoria
In Victoria, the law allows the Supreme Court to make statutory wills for minors or people who can't make a will themselves. These special wills represent what the person would likely want and are only approved in certain situations.
4. Case Study: State Trustees Limited v Rick Cooper
In a recent case in the Supreme Court of Victoria, the use of statutory wills was demonstrated. Although "Jim" could not make a will due to cognitive impairment, he clearly expressed his desire to exclude his nephew and provide for his wife's siblings. The court approved a statutory will that honoured Jim's intentions.
5. Standards for Statutory Wills
Before approving a statutory will, the court needs to confirm three key factors: first, that the individual cannot make a will; second, that the proposed will accurately reflect what the individual would likely intend; and third, that the decision is reasonable given the circumstances and free from any additional motives or purposes.
6. Approach with Caution
Be careful when considering statutory wills as they aim to honour the person's wishes. The court aims to match the proposed will with what the person would likely want, not comparing it to intestacy or existing wills. Seek legal help to navigate these complexities.
If you or someone you know is in a situation where making a will is challenging due to lacking testamentary capacity, seek professional advice to ensure their wishes are properly addressed.
DISCLAIMER
This is a commentary published by WebWillls for general information purposes only. This is not meant to be taken as particular advice. You should seek your own legal and other advice for any question, or any specific situation or proposal, or get in touch with the writer at http://webwills.com.au before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories.
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