Capacity Issues
A certain level of capacity is required to be able to make
contracts, give consents and a whole range of legal
matters.
For making a Will, it is necessary that the will maker has
"testamentary capacity".
A different level of capacity or at least a different test is
applicable to granting an enduring power of attorney.
Capacity for carrying out actions and making well thought out
decisions is not something that you have one day and the next it is
gone. Instead there is generally a gradual deterioriation in
capacity and gradually more help and guidance is required by
others. It is important to get planning done early rather
than later.
The overall plan made for the future will often include that the
existing Will is to be changed upon the happening of a future
predicted event. The range of possible events can be very
large indeed. It could be when a beneficiary reaches
particular age. It could be when a particular item of
property is sold. You can think about the future and make
predictions about circumstances that are likely to occur and will
result in changes to your existing Will. This is just all
about good planning. What needs to be considered as you get
older is the increasing risk of not having testamentary capacity
such that you cannot change your Will when these future
circumstances do occur! As age increases the loss of
testamentary capacity becomes more likely.
One potential way to deal with the issue is to appreciate the
jurisdiction regarding "statutory wills".