Which Will is Valid ?  

My mother ended her own life and changed her Will weeks before her passing. This was not done through a lawyer but with one of those Will kits from the post office. I’m not sure she was of sound mind, when she made this last Will. Is this going to be valid or will it void the prior Will she made through her lawyer?

A Will is not valid if the person making the Will lacked testamentary capacity and it appears that your mother may have lacked testamentary capacity at the time she made her last Will.

What is Testamentary Capacity?

Testamentary Capacity relates to whether a person was of sound mind at the time that they made their Will.

The test for testamentary capacity is whether your mother:

(a) Understood the nature and effect of making a Will;

(b) Understood the extent of her Estate i.e. her assets;

(c) Was able to comprehend and appreciate claims on her Estate that ought to be given effect to i.e. who she should consider as a beneficiary of her Estate; and

(d) Whether her state of mind prevented her from making a rational disposition of her Estate.

If your mother did not have testamentary capacity at the time of making her last Will then the Will she made using a Will kit will not be valid. This means that her earlier Will made through her lawyer will be admitted to Probate and govern the way your mother’s Estate is distributed and who the beneficiaries are to her Estate.

How do you prove a person did not have Testamentary Capacity when they made a Will?

The most common way to show a person did not have Testamentary Capacity when they made a Will is to obtain medical evidence and information to show that, at the time of making the Will, their state of mind prevented them from making a rational disposition of their Estate.

As well as medical evidence the Court will also place weight on comments made by the deceased in relation to their wishes regarding their Estate including comments made to family and friends.

What do I need to do?

It is important to seek legal advice as soon as possible if you believe that your mother did not have testamentary capacity when she made her last Will. This is because of the danger that her last Will may be granted Probate and her Estate distributed in accordance with the instructions in her last Will.

Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide you advise you in the event that you wish to challenge the validity of a Will on the grounds that the deceased lacked Testamentary Capacity at the time of making the Will. If you are living on the Northern Beaches and surrounding Peninsula and need expert advice in a Will & Estate matter, call today for a an appointment closer to home on 9221 0341

Northern Beaches Lawyers – City Experience by the Beach