Can Someone Change a Will When a Parent Is Losing Capacity?
This is one of the most common and confronting questions families face. It often arises in circumstances where a parent’s health is declining, decisions are being made quickly, and there are growing concerns about whether those decisions are valid.
The short answer is: a Will can only be changed if the person making it has the required legal capacity at the time.
What is “capacity” in this context?
For a Will to be valid, the person making it must have what’s known as testamentary capacity. In simple terms, they must:
Understand they are making a Will
Understand the nature and extent of their assets
Be aware of the people who may have a claim on their estate
Be able to make rational decisions about how their estate is distributed
If any of these elements are missing, the Will may be open to challenge.
What happens if capacity is borderline?
This is where things become difficult.
Capacity is not always black and white. A person may have good days and bad days, particularly where there is dementia, cognitive decline, or the effects of medication.
It is possible for someone to make a valid Will during a “lucid interval”, being a period where they temporarily regain sufficient clarity to meet the legal test.
Because of this, timing and evidence are critical. Medical opinions, solicitor notes, and the circumstances surrounding the signing of the Will all become highly relevant.
Warning signs to be aware of
There are certain red flags that often appear in these situations:
A sudden or significant change to a long-standing Will
One family member becoming heavily involved in the Will-making process
Isolation of the Will-maker from other family members
A Will being signed shortly after a hospitalisation, fall, or diagnosis
These factors do not automatically invalidate a Will, but they can raise serious questions about capacity and influence.
Can someone take advantage of the situation?
Unfortunately, yes.
Where capacity is declining, there is an increased risk of undue influence, this is where a person is pressured or manipulated into making decisions they would not otherwise make.
These cases can be complex, as undue influence is often subtle and difficult to prove. However, when combined with concerns about capacity, it can form the basis of a strong legal challenge.
What can you do?
If you are concerned that a Will has been changed in circumstances where capacity was questionable, it is important to act promptly.
This may involve:
Obtaining a copy of the current and any prior Wills
Gathering medical evidence
Reviewing the circumstances in which the Will was prepared and signed
In some cases, it may be appropriate to challenge the validity of the Will through the Court.
Final thoughts
These situations are rarely just legal, they are deeply personal and often involve family conflict.
If you are unsure about whether a Will is valid, or you are seeing warning signs in a parent’s decision-making, it is worth getting advice early.
Understanding your position at the outset can make a significant difference to how the matter is resolved.
Please note, this article is general in nature and does not take into account your personal situation or circumstances. For further information please contact Kenney Legal at info@kenneylegal.com.au or contact us via our social media networks.