There is a legal test known as the Banks v Goodfellow test that dictates whether someone has the required capacity to make a Will. The starting point is that capacity is assumed unless the contrary is proved. What they must be able to do is the following:
- Understand what a Will is and what it does.
- Understand what they own and that they want to give it away.
- Understand who they ought to consider leaving it to and decide whether they do or don’t want to benefit them.
- Have no “disorder of the mind which perverts…the exercise of their natural disposing of their property…”
- What this last step means is that even if they have some form of cognitive difficulties (such a dementia or Alzheimer’s Disease), they may still be able to prepare a Will if this disorder doesn’t direct their decision and reasoning, causing them to leave their estate to someone other than they would if they didn’t have the disorder.
This is something that a trained professional can assist with. It can often be beneficial for an outsider individual who has never met the individual before to have a discussion with them to see if they are capable of preparing a Will. Provided that it doesn’t cause upset or difficulty for your family member, it does not hurt to try. Further, having someone separate being able to attest to your family member’s capacity can minimise legal challenges, as they will have substantive notes prepared that would be able to be relied upon in the event that a challenge was brought.
