What is ‘testamentary capacity’? And why is it so important?
When creating estate planning documents (also known as ‘testamentary documents’), one of the most crucial requirements is ensuring the person making the will or other document has testamentary capacity. This term refers to a person’s legal and mental ability to make or amend a valid estate planning document. Understanding this concept—and its importance—can help protect your intentions and reduce the risk of disputes.
What is Testamentary Capacity?
In Western Australia, testamentary capacity means the person making the estate planning document must:
Understand the nature and effect of the document they are creating.
Be aware of the extent of their estate, including assets and liabilities.
Recognise who their natural beneficiaries are (e.g., family members).
Consider and evaluate the claims of those who may expect to benefit from their estate.
Be free from any condition, such as a cognitive impairment, that affects their ability to make rational decisions.
Why is Testamentary Capacity So Important?
If a person creates or amends a will or estate planning document without testamentary capacity, it can have significant consequences, such as:
Legal disputes: Beneficiaries or other parties may challenge the validity of the document, leading to costly and stressful legal proceedings.
Intestacy: If a will is declared invalid and there is no earlier valid will, the estate may be distributed according to Western Australia’s intestacy laws, potentially contrary to the deceased’s wishes.
Family conflict: Disputes can create emotional strain and damage relationships among loved ones.
How to Check Your Own Testamentary Capacity
To help ensure you have the capacity to create your estate planning documents, consider the following questions:
Do you understand the purpose and effect of the document you are creating?
Are you aware of your assets and liabilities?
Do you know who your beneficiaries are and why you are including or excluding them?
Can you explain your decisions clearly and rationally?
If you have any uncertainty, it is advisable to seek professional medical or legal advice to confirm your capacity.
Planning for the Future: Safeguarding Your Capacity
Cognitive decline due to age, illness, or injury can arise unexpectedly. Here are some strategies to safeguard your testamentary capacity and intentions:
Act early: Create your estate planning documents while you are in good health and revisit them regularly to ensure they remain relevant.
Enduring Power of Attorney (EPA): Consider appointing someone you trust to manage your affairs if you lose capacity in the future.
Keep records: Document the reasons for significant decisions, especially those that might be contentious, to provide clarity and evidence of your intentions.
Medical certification: If there are concerns about your capacity, obtaining a doctor’s certification at the time of drafting your documents can support their validity.
Final Thoughts
Ensuring testamentary capacity is essential for creating valid and enforceable estate planning documents. Proactive planning helps protect your legacy and prevents unnecessary disputes. If you have concerns about your capacity or expect challenges to your estate plan, seeking professional advice is vital.
At Estate Essentials, we provide tools to help you create secure and legally sound documents tailored for your needs.
Disclaimer: The information provided in this article is general in nature and does not constitute legal advice. Estate Essentials is not a law firm and does not provide legal services. While we strive to provide accurate and up-to-date information, it may not apply to your specific circumstances or address all potential issues. We strongly recommend consulting an independent legal professional to ensure your estate planning documents meet your unique requirements.