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 person making the will 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.  The person or their property manager may make a will only with the permission of the Court: PPPR Act, ss 54 and 55.

  © 2019 Alison Douglass