Capacity under a Will vs capacity under a Power of Attorney

What is capacity?

A person signing a Will or a Power of Attorney needs to have capacity to give instructions to make a Will or a Power of Attorney. Generally speaking, a person signing a document needs to be able to understand what type of document they are signing, what powers or assets they are giving to whom.

There are different capacities depending on what type of document a person is signing.

Capacity under a Will

In order to make a will you must have testamentary capacity. This means you should not be suffering from a mental disorder or a delusion. The test for testamentary capacity is a common law test. This means it is a test decided by a judge in a court case.

Generally speaking, a test for testamentary capacity is that you must know and understand:

• What a will is – what is its nature and effect;
• Approximately, what you are leaving in your Will – exact value is not necessary;
• Any reasonable claims that may be made against your property. For example, this would be a claim by someone who is financially dependent on you.

Capacity under the Power of Attorney

Capacity test under a Power of Attorney is slightly different. Under the Power of Attorney Act 2014, a person has capacity to make a decision if the person is able to understand, retain, use or weigh that information and communicate the decision and the person’s views and needs as to the decision in some way.

If you have doubts whether a loved one has capacity, we can provide you with criteria for a suitably qualified professional to assess capacity.

If you would like assistance, please contact Wollerman Shacklock Lawyers on (03) 9707 1155 or admin@wslegal.com.au.