One of the key requirements at law for making a Will is having sufficient capacity to understand and intend what is written. However, for those who are gravely ill or otherwise suffering medical or other conditions, this may be impossible. A Will may still be sought by a spouse or family if the person has minor children or material assets. In those cases, the Court has the power under the Succession Act to help.
Family members or others with an interest can apply to the Court seeking to make a Will for the incapacitated person. The Court will require a copy of the proposed Will. The Court will also hear from others who have an interest the Will, such as siblings, parents or children.
The issue for the Court is whether the person would probably make a Will in the terms proposed. A litigation guardian may, if possible, be able to assist the Court in understanding the wishes of the person. Further, evidence will help illustrate what the person most likely would have wanted. The Court will take into account their individual circumstances, including previously expressed views. For example, a 90 year old man’s historial views on wealth protection were relevant to a Will designed to provide asset protection for children.