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Lost capacity to make a Will?. What you can do.

Have you ever thought what would happen to your assets if you couldn’t make a Will?

challenging a will

Sometimes there are events in life which make it impossible for a person to make a Will, such as a severe cognitive impairment caused by a life-long disability, mental illness, a head injury from an act of violence or accident, a stroke or dementia. This would mean that you have lot capacity to make a Will.

What can be done?

Whilst these are some of the reasons why a person may not have the capacity to make a Will themselves, it does not stop a Court from being able to make a Will for them or to make variations to a Will that had been previously done by that person.  In New South Wales, the Supreme Court has the power to consider the need to make or vary a Will for such person upon the Application by someone who has a genuine interest in the Estate of the person with a severe cognitive impairment.

A genuine interest could be held by a parent, a spouse, a de facto partner, a child, a business partner, or a Financial Manager and/or Guardian appointed by NCAT.

If you have lost capacity to make a Will, the Court will require many things to be provided to them for consideration, including but not limited to, details regarding the full history of that person, their testamentary capacity, any evidence of their testamentary wishes, the size of their Estate, their relationships (family, romantic or close friendships). A proposed Will is also required to be submitted for consideration setting out the persons and presumed testamentary intention of that person.

Should the Court make a Will on behalf of a person who has lost capacity to do one themselves, this Will is referred to as a Statutory Will.

Whilst this may be a lengthy exercise to obtain all of the relevant information to make such an Application, it is well worth the avoidance of complication upon the person’s death.

Leading Law Firms committed to helping clients cost-effectively will have a range of fixed priced initial consultations to suit most people’s needs in quickly learning what their options are. At Brazel Moore Lawyers we have an experienced tem who can answer your questions and put you on the right track. Call Tamara Tunnicliff now on 4324 7699 to find out where you stand.

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