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.