Ordinarily, a person’s Will is considered a definitive statement of their final wishes and how they want their property divided. In some circumstances, however, it may be possible to challenge a person’s Will on the basis that it wasn’t properly made.

One such circumstance is the mental ‘incapacity’ of the person making the Will. Essentially, a testator needs to have a clear understanding of the meaning and effect of their Will when they execute the document, including an understanding of their property, who they are giving it to and how it is being divided. If, for example, the person at the time of making their Will was suffering from a medical condition which affected their ability to appreciate the effect of their Will, that Will may be subject to challenge.

Proving the incapacity of a Willmaker is a complex process. It is usually necessary to produce medical evidence which shows that a person could not have properly understood the meaning and effect of their Will at the time of making it. It is also important that any challenge to a Will in the basis of alleged incapacity is made as soon as possible, as it may be more difficult to contest the Will if the executors have obtained a grant of probate (ie. have already obtained the formal authority from the Court to administer the Estate).

If you have any concerns as to the validity of a Will and your interests have been affected, we would suggest that you contact our office on (07) 3262 6122 or visit our Website to obtain further advice.