What is legal capacity and how is it confirmed?
What is 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’.