Can anyone make a Will?

Published 03 Apr 2019

Talk to any legal advisor and it's likely they'll inform you that you should create a Will, if you don't already have one. It's an important document that everyone should have, no matter their financial state.

Are there any rules around who can make a Will? Here's what you need to know.

Who can make a Will?

If you're over 18 years old, and have testamentary capacity, you're able to create a Will.

However, there are certain situations where a minor (someone who is under the age of 18) is allowed to make one despite their youth. The three main scenarios where this occurs are where the minor is:

  • Married
  • Contemplating a marriage that then takes place.
  • Allowed to via Court approval. This is often advisable when the minor in question is earning large sums of money through a medium such as acting, sporting activities or commercial endorsements.

What is testamentary capacity?

Testamentary capacity is a legal way of ensuring you are of a sound mental state and are capable of understanding and making decisions around what happens with your estate. This is to protect you and your loved ones should someone try and manipulate your Will when you're not able to comprehend what is going on.

To ensure your Will is valid, it's wise to create it while you're still in good health. This can help avoid any complications further down the line, such as your Will being contested. Another way you can ensure your testamentary capacity isn't challenged is by obtaining a medical certificate for evidence at the time you create your Will

Your testamentary capacity is judged on four factors, which are as follows:

  • You must understand what a Will is and its legal effect.
  • You must comprehend the extent of your estate, and the amount and type of property that you're distributing to beneficiaries.
  • You must know who would generally be expected to benefit from your Will due to 'moral claims' and take this into account when deciding how to distribute your estate.
  • Mental illness or impairment mustn't stop you from making rational decisions around who you should make your beneficiaries.

It's also important that you know exactly what's contained within your Will, and that you approve of everything there.

If you'd like to know more about making a Will and ensuring it's valid, make sure you talk to the expert legal team at Malouf Solicitors today.

Please call us on 02 8833 2000 to speak with a lawyer

I remain extremely grateful for Maloufs legal representation related to my financial management of the estate of my brother and for your continuing help and advice in this matter. As an aside, I always recommend Maloufs to my friends and family members who are seeking the best legal representation - only last week, I strongly advised a close family friend that their best interests would be served by arranging an appointment at your Parramatta offices.
John of Parramatta NSW

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