Lets talk law: The validity of Wills

In a recent High Court case, a will was found to be invalid because, in part, the will maker had dementia. Photo / File

If you regularly read Let's Talk Law (and I highly recommend you do), you may have seen past articles about the importance of having a properly executed will.

An improperly executed will might not be considered valid, and fixing this can be a costly, time consuming process for the executors of your estate.

Want of form, however, is not the only reason a will might be held to be invalid by the High Court.

At the time you make your will, you need to be able to understand and appreciate the consequences of the decisions you are making about how your estate will be distributed.

This is known as testamentary capacity.

There are three factors a court will consider when deciding if someone had testamentary capacity when their will was made.

Firstly, did the will maker understand the nature and effect of making the will and the size of their estate.

Secondly, did they understand their moral duties as the person making the will.

Lastly, were they free of any mental defect which would affect their mind to such an extent that they were gifting their estate in ways they wouldn't but for the mental incapacity.

When you make your will, you need to be able to understand that the content of the will and the effect that your will has on your estate.

You also need to know what is in your estate. In simple terms, you should be able to understand what it is that you own, who you want to give it to in your will, and why.

The law recognises that, as a will maker, you might owe an obligation to certain people to ensure that they are properly looked after.

This is the moral duty requirement referred to above.

A will maker might owe this moral duty to their spouse, children, grandchildren, stepchildren, or parents.

One way of thinking about moral duty, although somewhat simplistic, is "looking after your own".

Family and personal relationships are unique to the individual, and the courts have also recognised will makers owing moral duties to nieces and nephews, siblings and in-laws.

There are a number of ways that someone's mind can be affected to such an extent that they do not have testamentary capacity.

This could be caused be long-term capacity issues, such as dementia, or acute conditions, such as injury or the effects of medical treatment.

It's not enough that you are suffering from anything which might affect your mental capacity, such as the usual decrease in mental ability one might experience with ageing.

It must be more than that, something which affects your ability to understand and make decisions about your estate.

In a recent High Court case, a will was found to be invalid because, in part, the will maker had dementia and was suffering from delirium in the days prior to and after signing his will.

Evidence presented to the court suggested that the will maker was able to engage in superficial conversations during this time, such as talking about the weather.

The court was not satisfied, however, that the will maker had the level of mental capacity required to meet the testamentary capacity requirements for a valid will.

Even if you are affected by a condition which significantly impacts your mental capacity at the time of signing your will, this doesn't necessarily mean that your will is invalid.

In another recent High Court case, a will maker, who was in the care of a mental health facility, gave instructions to his solicitor to draft a will.

The next day the will maker received shock treatment, which left him disorientated and confused. He then signed his will later that afternoon.

The court held that the will maker did have testamentary capacity at the time of signing his will.

Interestingly, the court noted that, even if it had found that the will maker did not have capacity at the time he signed his will, the will would still have been considered valid.

This is because he had testamentary capacity at the time he gave instructions to his solicitor.

The above cases highlight the need to put your affairs in order early. Court proceedings can be time consuming, expensive and distressing for your loved ones.

The best way to ensure that your will is valid and your wishes will be followed is to put one in place early on in your life and continue to regularly update it.

Buying a home, marriage or separation, or the arrival of a child are all good times to update your will.