Who can’t make a will?

While most adults are both competent and cognisant, there are some instances where someone may not be able to make a will.

For example, if you are unable to understand what is going on around you then you really don’t have the capacity to make a will. There are many reasons why you may not be able to understand.

For example, a mental illness or medication may affect your thinking ability, or you may simply be unable to communicate at all. Lawyers refer to this as having a lack of testamentary capacity.

A person has testamentary capacity if they have a sound mind, meaning you must know you are making a will, and know its effect; you understand the nature and extent of the estate; and understand you are disposing of property and assets.

This is different to having medical incapacity. For example, medical incapacity may result from a diagnosis of dementia or Alzheimer’s disease.

However, even with such a diagnosis, a person during a time of being lucid may well know and appreciate they are making a will, and they know its effect, and thus can give instructions to make a will.

As well as having testamentary capacity a person must (generally) be over the age of 18 to make a will. There are some exceptions to this.

For example, if a person under 18 years of age is to be married, then they can make a will. The only other time a person under 18 years of age can make will is by court order.

Finally, much to the surprise of many people, a person who is an attorney under a Power of Attorney cannot make a will for the principal, or bestower of the power.

From Patrick Coetsee, Wills & Estate Solicitor, Kenny Spring Solicitors.

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