While most adults are both competent and cognizant, there are some instances where someone may not be able to make a Will.

For example, if you are unable to understand what is going on around you then you really don’t have the capacity to make a Will. There are many reasons why you may not be able to understand. For example, there may be a mental illness, or you may be on medication that affects your thinking ability, or you may simply be unable to communicate at all. Lawyers refer to this as having a lack of testamentary capacity.

A person has testamentary capacity if they have a sound mind, meaning that you must know that you are making a Will, and know its effect; you understand the nature and extent of the estate; and understand that you are disposing of property and assets.

This is different to having medical incapacity. For example, medical incapacity may be a result of a diagnosis of dementia or Alzheimer's disease. However even with such a diagnosis a person during a time of being lucid may well know and appreciate they are making a Will, and they know its effect, and thus can give instructions to make a Will.

As well as having testamentary capacity a person must (generally) be over the age of 18 to make a Will. There are some exceptions to this. For example, if a person under 18 years of age is getting married, then they can make a Will. The only other time a person under 18 years of age can make Will is by Court order.

Finally, much to the surprise of many people, a person who is an attorney under a Power of Attorney cannot make a Will for the principal, or bestower of the power.

Wills & Estates | Kenny Spring Solicitors

Please note the answers provided are for your general information only and we ask you to call our office on 02 6331 2911 to obtain detailed legal advice for your individual situation.