Does a person have
to make a will?
No. In fact many people
choose not to make a will. The decision is a personal and
private one. It should not be assumed that a person with
an intellectual disability does not wish to make a will.
It may be that no-one has ever explained to the person
what a will is.
What happens if a
person dies without making a will?
The person’s property
goes to the person’s nearest relatives. It is only
if there are no near relatives that the property goes to
the government.
Can a person with
an intellectual disability make a will?
Many people with intellectual
disability can make a will. In order to make a will, the
willmaker must have “Testamentary Capacity”
which means that the willmaker:
- knows that a will is a paper
that says what happens to your property after you
die.
- knows in general terms what
property s/he owns.
- is able to consider the
“moral claims” of possible beneficiaries for
inclusion in the will.
In addition, the willmaker must
know and approve the contents of the will.
Is evidence of
capacity required?
A formal assessment of
capacity is not required to make a will. However, if
someone is unhappy about the distribution of assets under
the will, that person may challenge the will on the
grounds that the willmaker did not have sufficient
capacity.
When deciding whether or not
evidence of capacity should be obtained the following
factors should be considered:
- the willmaker’s own
views
- the level of the person’s
disability
- the likely value of the estate,
and
- the likelihood of a later
challenge to the will.
If it is felt that evidence of
capacity is required and the person is willing to see a
psychologist, this should be arranged. A statutory
declaration should be obtained from the person verifying
the capacity of the willmaker.
The statutory declaration should be
kept with the will.
If the person is unwilling to see a
psychologist, it might be possible to obtain evidence of
capacity from other sources, for example, a support
worker who has been involved with the person for a long
time and is present when the person gives instructions
for the drafting of the will or when the will is
explained and signed.
Even if there is doubt about the
willmaker’s capacity, the willmaker should still
make a will if s/he wants to do so. A will is usually
presumed valid unless and until someone challenges
it.
Can someone else
make a will for a person with an intellectual
disability?
No. No-one can make a will
for another person.
Guardians, trustees, parents and
people under a power of attorney have no power to make a
will on another’s behalf.
Is a solicitor
required to prepare a will?
A will does not need to be
drafted by a solicitor. A will must comply with certain
formal requirements and it is advisable to have any will
prepared by a person who is familiar with these
requirements. If the estate is large or the
willmaker’s instructions complex, legal advice
should be sought.
Where the willmaker has
intellectual disability, it is also advisable to have the
will prepared by a person with some experience in
intellectual disability so that they are more likely to
be able to explain about wills and understand the
person’s instructions. In particular, the will
should be uncomplicated and in plain language.
Comprehensive notes should be kept
by the person preparing the will and these notes should
stay with the will. In addition, because some people with
intellectual disability may be easily influenced by
others, it is recommended that someone unrelated to the
willmaker take instructions and prepare the
will.
This reduces the possibility of
allegations that the will or part of it is invalid
because someone has improperly influenced the
willmaker’s decision.
How much will it
cost to have a solicitor write a will?
Some community legal centres
will draft wills for free if the willmaker can not afford
a solicitor and wishes to make a simple will. Contact
your local community legal centre to see if they provide
this service.
The fees charged by private
solicitors to draft wills varies greatly. Make sure you
understand what fees will be charged before you ask
anyone to prepare a will.
The Law Society or the Intellectual
Disability Rights Service may be able to give you the
names of solicitors in your local area. Alternatively,
the Public Trustee and some private trustee companies
will draft wills for no or only a nominal fee if they are
named as the executor under the will. They will then
charge a fee to administer the estate when the willmaker
dies.
Where can I get
further information?
• Questions of
Rights: A guide to the law and rights of people with an
intellectual disability, 2nd edition. Available from
the Intellectual Disability Rights Service.
• When I’m gone -
A guide to wills for parents of people with intellectual
disability. This book aims to provide parents with the
full range of options available to them in estate
planning so they are better placed to fully and properly
instruct a solicitor in drafting their wills.
• Community Legal
Centres - for information about the legal centre
closest to you phone the Combined Community Legal Centres
Group 02 9318 2355
• Law Access PH 1300
888 529
For further
information
Legal Advice available between 2pm
- 5pm weekdays
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