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Derek Legal Blog

Author: Derek Legal


Derek Legal Blog

How to Make a Will for a Person Who Lacks Testamentary Capacity

To make a valid will a person must have testamentary capacity. To have testamentary capacity the following must be shown:


1.       The Testator must be aware, and appreciate the significance, of the Act in the law upon which he is about to embark;

2.       The Testator must be aware, at least in general terms, of the nature, extent and value of the estate over which he has a disposing power;

3.       The Testator must be aware of those who may reasonably thought to have a claim upon his testamentary bounty, and the basis for, and the nature of, the claims of such persons;

4.       The Testator must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.


A person who had testamentary capacity may lose it in a number of ways, for instance by suffering a head injury or having dementia. A person who lacks testamentary capacity may not have a will, or the will that, that person does have is no longer suitable because of a change of circumstances.

The Succession Act 1981 provides a court may authorise a will to be made, altered or evoked for a person without testamentary capacity.


Subsection 2 provides “the court may make the Order only if”: -

(a)    The person in relation to whom the Order is sought lacks testamentary capacity;

(b)    The person is alive when the Order is made;

(c)     The Court has approved the proposed will alternation or revocation.


Section 22 provides that a person may only apply for an Order under Section 21 with the court’s leave.

Section 23 provides the information required by the court in that application.

Section 24 provides what the court must be satisfied of before granting leave under Section 22 namely:


A court may give leave under section 22 only if the court is satisfied of the following matters—

(a) the applicant for leave is an appropriate person to make the application;

(b) adequate steps have been taken to allow representation of all persons with a proper interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom an order under section 21 is sought;

(c) there are reasonable grounds for believing that the person does not have testamentary capacity;

(d) the proposed will, alteration or revocation is or may be a will, alteration or revocation that the person would make if the person were to have testamentary capacity;

(e) it is or may be appropriate for an order to be made under section 21 in relation to the person.


Before the court gives leave, the court must be satisfied of all the matters in Section 24.

Recently, the Court gave leave in a case where the Testator had made a will and thereafter suffered an acquired brain injury as a result of an accident. At the time the will was made, the Testator had little in his estate. The Testator received a substantial Award of Damages and the court approved a new will which dealt with the vastly enhanced state.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 28 February 18

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