The essential elements of capacity for making a will (testamentary capacity) have remained unchanged since the decision in Banks v Goodfellow(1870) LR QB 549; Woodward v Smith [2009] NZCA 215.

This requires that the person understands:

  • the nature and effect of making a will;
  • the extent of the property which the person has for disposal; and
  • the moral claims of potential beneficiaries when making the will

The will-maker must have the requisite mental capacity at the time they execute the will. Susceptibility of the will-maker to undue influence or the extent to which they have suffered from a serious mental illness, immediately before and subsequent to, making a will, may be relevant to legal grounds in challenging whether the will is valid.

A capacity assessment may be required for a person subject to a property order under the PPPR Act. There is a presumption of make a will even if the person is subject to a property order. The person or their property manager may make a will only with the permission of the Court: PPPR Act, ss 54 and 55.

  © 2020 Alison Douglass