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Mental Capacity to make a Testamentary Promise

By Andrew Steele - 8 Oct 2018

Have you ever been promised something would be left to you in a will, but it never eventuated? If you worked or gave services to someone who promised to reward you in their will, but they didn't, the Law Reform (Testamentary Promises) Act may allow you to claim against the promisor's estate.

Occasionally, those protecting the estate may argue that the promisor did not have the mental capacity to make the promise. What if the promisor had been forgetful? What if they had a degenerative mental condition or were on mind affecting drugs? This raises the question: what level of capacity is required?

The mental capacity required to make a valid will is different to that required to make a valid contract.

A will-maker must have the capacity to understand that they are (by the will) giving property to another. They must also comprehend and recollect the extent of their property and the nature of the claims of others whom, by the will, the testator is including or excluding from that property. This is called 'testamentary capacity'.

By contrast, the capacity required to make a valid promise under the Act is 'contractual capacity'. All that is required for this is that the contracting party understands the general nature of the transaction, as opposed to the details. In short, the capacity to understand what they are doing.

The distinction is important. First, testamentary capacity is a more demanding burden to discharge. Second, where there is a rational and duly executed will, there is a presumption of capacity. But if there is evidence casting doubt about capacity, then those seeking to uphold the will must show the will-maker had the necessary testamentary capacity.

In testamentary promise claims, like with contracts, those seeking to strike down (void) the promise/contract must show that the promisor did not understand what he or she was doing. It must also be shown that the person receiving the promise or contracting with them knew or ought to have known that such capacity was lacking.

If you have any questions about the enforceability of a testamentary promise, please contact any member of our trusts and estates litigation team.


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