Am I of sound mind?
It is fairly common knowledge that in order to make a valid Will, the will maker must be of "sound mind". But what does that mean exactly?
Being of sound mind, or in legal speak "possessing the necessary mental capacity", essentially means that the will maker must:
1. Understand his or her acts, the nature of those acts and the extent of the dispositions being made under the Will
2. Comprehend the various claims of relatives, friends and others to a share of the estate.
3. Not be influenced by any insane delusion.
The will maker does not need to understand each provision in the Will, comprehend the technical legal language in the Will or recall each specific piece of property mentioned in the Will. However, the will maker must understand that he or she is executing his or her own Will, know and approve of the contents of the Will and possess a general idea of the property which forms his or her estate.
The fact that the will maker is of advanced age, physically frail or beginning to suffer the effects of senility or dementia will not necessarily mean that they are not of testamentary capacity. For example, a person suffering from dementia may have difficulty in his or recollection, but still possess the ability to understand the nature and effect of what he or she is doing. Each case will be determined on its individual circumstances.
Where there is doubt about a person's mental capacity, it may be prudent to have him or her examined by a medical practitioner. If so, the practitioner should address the matters referred to in paragraphs 1 to 3 above. The person who drafts the Will on behalf of the will maker should make his or her own assessment of the testator's mental capacity, both at the time of taking instructions and the time of executing the Will.
If a person does not possess the required mental capacity, recent amendments to the Wills Act 1970 (WA) have given the Supreme Court the power to make a Will on that person's behalf in certain circumstances.
For further information or advice on this topic, please contact Chris Dunnell, Senior Lawyer, by email at cdunnell@talbotolivier.com.au or Rob Durey, Principal, by email at rdurey@talbotolivier.com.au
