My parent is of unsound mind and hasn't made a will

Published 09 Jun 2017

As common as it is for adults to have drafted a will by the time they're reaching old age, some people have never realised the importance or simplicity of doing so. This problem becomes even more complicated when someone, a parent or family friend for example, hasn't made a will and is now not mentally capable of doing so.

This issue is unfortunately one you can't solve on your own - a Parramatta lawyer will need to help you through the process. Here is some more information on what to do if your parent is of unsound mind and hasn't sorted out what will happen after they pass away.

Wills and unsound minds

In order to draft a legally binding and valid will, you must have 'testamentary capacity' and be of sound mind - this means you are coherent enough to understood exactly what's going on while you are signing the document. If your parent is suffering from severe dementia or another illness (mental or otherwise) that has incapacitated their mind, any will they write or sign won't be viewed as valid by the court.

Though this law is obviously meant to protect mentally unsound people from being manipulated, it can cause unfortunate complications for families whose futures are uncertain because no will has been made yet.

What can I do?

If you find yourself in a situation where someone's mental stability is declining, you have a couple of different options. The first option is getting what's called Power of Attorney, essentially giving the responsibility over to a representative - this, however, can also only be agreed to if the person in question is lucid and can understand what they're agreeing to.

In the case of a parent or other elderly person who is completely lacking testamentary capacity, you will have to seek the help of a guardianship board, tribunal or the Court. The laws in NSW state that a will may be "made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity."

Unfortunately, such a process will likely be time-consuming and expensive, meaning it makes sense to avoid it if at all possible. Unless your ageing loved one is of indisputably unsound mind, it makes sense to try and help them draft a will or bring on a Power of Attorney before it's too late.

If you find yourself stuck in a tough spot, get in touch with a lawyer at Malouf Solicitors who can give you a better idea of your options.

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

I would just like to say thank you to Anthony who assisted my son in his matter. He is a first home buyer and was pressured into signing a contract prior to obtaining legal advice. The contract was certainly was not the normal straight forward type. To be able to obtain the help and assistance he did from Anthony and rescind the offer the next day, was wonderful. We were able to have a stress free Christmas. I am unable to thank him enough for this. My son and our family will be contacting Anthony when we find the next property.
Kim of Sydney

Parramatta Office:

Level 5/146 Marsden Street
Parramatta NSW 2124

PO Box 945
Parramatta NSW 2124

Phone: 02 8833 2000
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mail@maloufsolicitors.com.au