For a Will to be valid the person making it, the testator, needs to have the requisite capacity…sound mind, memory and understanding.
This means:
- they must be able to understand what a Will is (the nature of the document) and what it does (the effect of the document);
- they must be able to comprehend the extent of their property (what assets they have and how they are held) and how they wish to dispose of their property (who they want to inherit it);
- they must be able to comprehend and appreciate any potential claims that could be made against their estate (eg family provision claim by an adult child excluded from the Will); and
- they must not be suffering from any disorder of the mind that would prevent the exercise of their natural faculties thus influencing their Will.
When making a Power of Attorney, the donor needs to be able to understand 4 things:
- that their attorney will be able to assume complete authority over their affairs;
- that their attorney will, subject to any conditions or limitations imposed, be able to do anything with their property that they themselves could have done;
- if creating an Enduring Power of Attorney, that the authority of the attorney will continue if they become mentally incapacitated; and
- that if they become mentally incapacitated, the appointment will be irrevocable without approval from the court.
At Everingham Solomons, we have the expertise and experience to assist you with all your Estate Planning needs because Helping You is Our Business.
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