What is legal capacity and how is it confirmed?
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 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 a will based on ‘capacity’.