A person who makes a Will must have testamentary capacity.
This means the person understands the nature and effect of making a Will and understands what they own and who can claim on their estate.
Wills can be challenged and ‘struck out’ if a person did not have capacity to make it. In addition to having capacity, a person must ‘know and approve’ the Will’s contents.
This is usually presumed when a Will is signed by a person with capacity. The presumption can be displaced if there are ‘suspicious circumstances’.
Factors such as the sophistication of the Will maker, complexity of the Will, exclusion of family members and opportunities to consider the draft and obtain advice are relevant.
A person who has capacity may have the ability to ‘know and approve’ of a two-page Will where the estate consists of a bank account and a car.
However, the same person may not have the ability to ‘know and approve’ the contents of a 30-page testamentary trust Will, done online without explanation of the terms, where the estate consists of numerous investments, cryptocurrency and assets in multiple jurisdictions.
Lack of knowledge and approval is distinct from lack of capacity and is yet another way a Will can be challenged.
Trent Wakerley, Director, Kruger Law, Level 3, Ocean Central, Ocean Street, Maroochydore, 5443 9600, krugerlaw.com.au
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