There are a number of grounds on which the validity of a will may be contested, one of which is mental capacity. But what defines mental capacity, and how do you go about challenging a will on these grounds? Read on for a basic overview.
What defines mental capacity?
For a will to be valid, the testator (the person who made the will) must have been of "sound mind, memory and understanding" at the time they made their will, as established in the case of Banks v Goodfellow [1869-70].
According to this definitive case, the person making the will must:
How can you prove the testator's mental incapacity?
Even if you suspect that a person has disinherited you in an act of spite or vengefulness, this does not necessarily mean that their mental capacity is doubtful. For a successful contest to be made under these circumstances, medical evidence of the testator's inhibited mental health will be required. This can be problematic with illnesses such as dementia or Alzheimer's disease, where the condition causes fluctuating lucidity and comprehension from day to day. You'd have to prove that the person was mentally incapacitated at the time the will was actually executed, which can be very difficult to do.
If the testator's will contains nothing unduly odd or out of the ordinary, you could still challenge it if the person has a history of mental illness or memory loss. In this case, the onus would be on the executor named in the will to prove that the testator was of sound mind and judgement at the time the will was made.
However, if the testator neglected to leave property or money to a dependent for no apparent good reason, this could throw doubts on their mental capacity to understand the implications of their actions. For example, if a parent left their entire estate to an animal charity, thus leaving a dependent child homeless and destitute, their state of mind at the time the will was executed could be questioned with good reason.
How do you contest a will on grounds of mental capacity?
If you suspect that the testator did not have mental capacity when they made their will and wish to contest it, it's important that you seek the advice of an experienced family law solicitor.
It's also sensible to take out a caveat with the Probate Office that will stop a Grant of Probate from being issued. This will prevent the estate's assets from being distributed until the dispute has been resolved.
It's also a good idea to get in touch with whoever prepared the will and try to find out who witnessed it. In addition, try to obtain the testator's health records to see if they were suffering from any form of mental illness. The objective here is to try to establish more evidence concerning the person's state of mind at the time their will was executed.
If a will is successfully disputed and is ruled invalid by the court, the estate will be awarded as per the intestacy rules.
It is possible to challenge a will that you feel has been made while the testator was mentally incapable. However, it's important that you seek the advice of an experienced family law solicitor, as the law surrounding estates is complicated, and Australian intestacy laws can vary between states.Share