What is legal capacity and how is it confirmed?

What is an Incapacity Will?

A will can be challenged if the will-maker did not have ‘legal capacity’ at the time it was made.

“Capacity” refers to the legal status of the a person’s function to understand the implications of what they are doing. To have capacity, the testator needs to know what a will is, what their property is and who are the people who might have a reasonable expectation to share in their estate.

Qld Estate Lawyers can help with claims by disappointed family members concerning the will-maker’s capacity and for the estate – in proving the will  in ‘solemn form’ – if an incapacity Will allegation is made.

Persons with diminished mental acuity eg with dementia, lack legal ‘capacity’ and can only make a valid will (or vary one) during a medically certified “lucid” period.

The courts will determine a person’s capacity based on evidence of those in regular contact with the person and medical evidence.

The court can also be asked to make a will for a person who lacks the capacity to make one for themselves.

Use our free online Assessment Tool to evaluate the strength of any challenge or proposed challenge to an Incapacity will base on ‘capacity’.
Incapacity Will

Planning for incapacity

An important part of your estate plan

We are here to make this process easier for you. If you require further information regarding capacity, please call us on 1300 580 413

Start the Process

Contact our Wills and Estate lawyers by sending us an email and we’ll get in touch shortly, or phone between 8:30AM and 5:00PM Monday to Friday — we would be delighted to speak.

Office hours — 1300 580 413

Monday 8:30 am - 6:00 pm
Tuesday 7:30 am - 6:00 pm
Wednesday 7:30 am - 6:00 pm
Thursday 7:30 am - 6:00 pm
Friday 7:30 am - 5:00 pm
Saturday Closed
Sunday Closed

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