Making a will

Contributed by Paula Parentich and current to 1 September 2005

For a will to be valid, the person making it should be of ‘sound mind’. If there is a challenge in the Supreme Court that a will should be set aside because the person who made it was not of sound mind when it was signed, the Court will hear evidence from medical practitioners, family and friends, and reach a conclusion which may mean that the will does not have effect.

The fact that a person has or has previously had mental illness may not prevent him or her making a valid will. It is perfectly possible for a valid will to be made while the illness is under control or where the person is clearly aware of the meaning of what he or she is doing.

A person asked to witness the signature of a person making a will is not required to judge the mental state of the person making the will, but it is possible that he or she may be called as a witness about the person’s apparent state of mind if the will is ever contested. Where there is any doubt about the capacity of the person, it may be wise to arrange for a medical examination prior to drafting and signing the will. If possible, the medical practitioner should act as one of the witnesses.