To make sure that their assets flow to the beneficiaries they specify when they pass away, all adults should create a will. Without a will, a person’s assets must be distributed in accordance with the “rules of intestacy.” These restrictions are highly rigorous and won’t always be in line with an individual’s preferences, resulting in unfair results. A Statutory Will may need to be prepared in advance.
A person cannot create a Will unless they possess the required ability, which can be determined by a solicitor. It’s possible that someone lacks the requisite capability to make a will if, for instance, they have a cognitive impairment or have sustained brain damage. This implies that when they pass away, their assets might not go to the beneficiaries they would have chosen.
For instance, under the laws of intestacy, the estate of a person with a cognitive impairment who has received a sizable bequest or compensation payment and only has a relationship with one of their parents must be divided equally between the two parents. If one parent has raised the child for many years and the other has had absolutely no contact with them, the outcome may be wholly unfair.
As a general rule, people above the age of 18 are assumed to be competent enough to direct a lawyer to draught a valid will. They must, however, have good judgment, memory, and comprehension.
A lawyer evaluates each situation to see whether the individual has the required level of legal competence to draught a will. Below, we examine how a Rockhampton Wills and Estate Lawyers
determines if a client has the mental capacity to draught a legally binding will.
How Does a Lawyer Determine Capacity?
Your lawyer will confirm your capacity using accepted guidelines (Banks v. Goodfellow, 1871). They will check that you: by asking you a few straightforward questions.
- know the general nature and extent of your property;
- are aware of family members or other parties who might reasonably be expected to have a claim on your property;
- are aware of the nature and effects of a will;
- and can assess each claim’s merits, both positive and negative.
To standardize the process and handle any potential subsequent issues, many Will & Estate lawyers engage in good general practice and evaluate the capability of all clients over 65.
They will follow the detailed directions you supply, which you will typically have to do on your own. They will describe the will’s scope and legal implications before asking you to explain how you perceive the document. They may also enquire about the rationale behind any suggested alterations if you already have a will. They will retain thorough records of your directions, the justifications for your decisions, and the justifications they provided you.
They will confirm what you have directed regarding your estate after receiving your instructions. With the aid of your accountant and other pertinent sources, they will analyze your financial records, including balance sheets, corporate records, superannuation deeds, and papers of title. This is due to the requirement that all ownership of assets and obligations be established before your will may be executed.
What if there are concerns or issues relating to my capacity?
The capability to create a legally binding will might be impacted by a variety of factors. Age, illnesses like dementia and poor health, mental illness, and disability can all be contributing causes. It is advisable to inform your lawyer as soon as possible if you are worried that any of these situations may apply to you. In order to ensure that your will won’t be challenged in the future, they will seek a health expert to assess your capacity.
If they are obviously operating in your best interests, they might also seek a support person to help you. All of this is done to ensure that, in the event that any parties are dissatisfied with your choices, a court would enforce your objectives in your will. According to the court, unless contrary proof is given, a will-maker is presumed to be of sound mind. This means that someone must contest your capacity at the time you made the will by presenting the court with specific proof, such as professional reports from family doctors or psychiatrists. It will now be up to the person asserting the will’s validity (often the executor) to demonstrate that the will-maker actually did possess the necessary capacity.
Because of the consequences of a will’s effects and the significance of the document to your life and your assets, it is highly advised that you get legal counsel before making a will. This is particularly true if you need to handle numerous persons, assets, and liabilities, which will make the drafting of your will extremely complex.