What is legal capacity and how is it confirmed?

Incapacity refers to the legal status of the a person’s function to understand the implications of what they are doing.

As some people get older they may lose the capacity to legally create a will. If the creator did not have capacity at the time the will was made, there are definite grounds for dispute.

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.

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.

Evidence of conditions such as dementia are good examples of incapacitated circumstances.

If incapacity is alleged, the will must be proved in ‘solemn form’.

Use our free online Assessment Tool to evaluate the strength of any challenge or proposed challenge to a 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.

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