What is lack of mental capacity? What are grounds for attacking the validity of a will?
With David Hobbs and Ian Giroday. In this episode David explains mental capacity, and Ian explains the grounds for attacking the validity of a will.
Show Notes Episode 12:
David Hobbs, Mental Capacity
- Mental capacity is our ability to understand what we’re doing and the nature of our actions.
- When a person makes a will, usually with a lawyer or notary public:
- The lawyer or notary have a duty to assess the mental capacity of the will maker;
- They often already know the person well; and
- If they don’t, they should ask questions to determine if the person knows where they are, what time of day it is, and basic things a person should understand.
- More specifically with a will, the person needs to:
- Understand what a will is;
- Understand what a will does;
- Know what their assets are; and
- Identify those expected to benefit from the estate (immediate family etc).
- Medical practitioners may also be asked for an opinion on mental capacity.
- It’s not a high standard, just sufficient to understand the nature of your actions.
- Consequence of lack of mental capacity is the will is invalid.
Ian Giroday, on the grounds for attacking the validity of a will
- Some grounds on which the validity of a will can be attacked:
- Formal requirement not met;
- The will must be in writing;
- Signed by the will maker and witnessed by 2 people;
- Formal requirements have changed under WESA;
- Mental capacity (as detailed by David); and
- The will was procured by undue influence.
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