What is testamentary capacity?

What testamentary capacity means

Testamentary capacity is the legal term for a person’s ability to make a valid will. In general terms, it means the person understands what a will is, roughly what they own, who might reasonably expect to benefit from their estate, and the practical effect of the decisions they are making. It also means they are making the will freely and voluntarily, without pressure or undue influence.

Capacity is assessed at the time the will is made. A person may have capacity one day and not the next, or may have capacity for a simple will but not for a complicated one.

Why it matters

A will is only valid if the person who made it had capacity and understood what they were doing. If capacity is later questioned, the will can be challenged. If a challenge succeeds, the will — or part of it — may be invalid, and the estate may be distributed under an earlier will or under the intestacy rules instead. That can be distressing and expensive for the people left behind, which is why capacity is taken seriously.

The general test

New Zealand courts apply long-established principles when considering testamentary capacity. In broad terms, a person needs to be able to:

• understand that they are making a will and what a will does;
• know, at least in general terms, what property they own and its value;
• understand who might reasonably expect to benefit from their estate, such as a spouse, partner, children or other dependants; and
• make the will freely, without a disorder of the mind that distorts their judgment or decisions.

The bar is not impossibly high — a person does not need to understand every legal detail. But they do need a genuine understanding of the decisions they are making.

What can affect capacity

A range of conditions can affect a person’s ability to understand and decide, including:

• dementia or cognitive decline;
• stroke, brain injury or serious illness;
• severe depression, anxiety or other mental health conditions;
• heavy sedation or the effects of medication; or
• alcohol or substance misuse.

Having one of these conditions does not automatically mean a person lacks capacity. It depends on the severity, the particular decision being made, and the person’s understanding at the time. Many people with health conditions are perfectly able to make a valid will.

Who decides

Usually, capacity is assessed informally. A lawyer taking instructions for a will will talk with the person and form a view. Where there is any real concern — for example, signs of confusion, memory problems or pressure from others — the lawyer may seek a medical opinion or recommend the person see their doctor.

If a will is challenged after the person has died, the court decides whether capacity existed at the time the will was made. The court can consider medical records, notes from the lawyer, statements from people who were present, and any other relevant evidence.

What helps protect a will from challenge

• Make the will when the person is well, rather than waiting until capacity is in doubt.
• Have the will made by a lawyer where there is any concern — independent legal advice is strong evidence of capacity.
• If appropriate, obtain a doctor’s assessment around the time the will is made.
• Keep written notes or a record of the person explaining their reasons.
• Discuss the will openly with family where that will reduce surprise or conflict.
• Avoid sudden, unexplained changes to long-standing plans.

Red flags to take seriously

Get professional advice if any of the following are present:

• the person seems confused about their assets or family when discussing the will;
• a new will makes dramatic changes that do not match long-held wishes;
• the person is being pressured, controlled or isolated by someone close to them;
• a new partner or new contact appears to be influencing decisions; or
• the person has a condition that affects their memory or judgment.

FreeWills and capacity

A self-service tool like FreeWills cannot assess whether you have capacity, and it cannot tell whether you are being pressured or influenced. You confirm that you are making your will freely and voluntarily and that you understand what you are doing. If there is any doubt — yours, a family member’s, or a professional’s — stop and get individual legal advice before signing.

The bottom line

Testamentary capacity is about understanding, not perfection. Most people making a straightforward will have capacity and never face a problem. But if capacity is ever in doubt, the safest path is a medical opinion and independent legal advice — it is far cheaper than a dispute after someone has died.