How old is too old for an agreed will?

PUBLISHED 05 Jan 2020

Many people might think it’s a good idea to put off writing their Will. The thinking being that it’s better to wait for the right moment – after a grandchild’s birth or once they retire. While it’s never too early to create a Will once you’re of age, the sooner this act is completed the better.

At the same, you’re never too old for an agreed Will. The only official age requirement for a Will is the legal minimum age, which is 18 years old. There is no set upper limit for someone to draft and sign their Will for it to be valid.

However, although there’s no “maximum age” for a Will, there are several factors to keep in mind if you’ve been putting off this important responsibility.

Ageing and testamentary capacity

Despite popular assumption, the severe cognitive decline typically associated with dementia is not too common. Less than 7 per cent of those suffering from dementia have severe cognitive decline in Australasia, according to the Centre of Excellence in Population Ageing Research (CEPAR). But with an ageing population, this still corresponds to a significant number of people who will experience this decline as they age.

Once a person reaches a point where they can no longer make rational decisions because of cognitive decline, dementia or Alzheimer’s, the person lacks the requisite testamentary capacity to legally sign a Will. Only under certain conditions allowed and ordered by the court can someone with testamentary capacity sign a Will. This makes it extremely difficult for anyone with cognitive decline to fulfill their intentions once they pass.

Long-term health care needs

In addition to the lack of testamentary capacity that can accompany ageing, growing older also comes with long-term health care needs.

Aged care and the costs associated with increased health risks as we age can lead to pressure and confusion about asset management. This may complicate what assets to include in a Will, and how it should be distributed.

As we can see, although you’re never too old for an agreed Will, it’s in both yours and your family’s best interest to ensure you have a Will signed before it’s too late.

The best practice should be to sign a Will as early as possible. Once in place, it’s wise to keep the the Will regularly updated, especially following major life changes such as the birth or loss of a loved one. This ensures nothing gets overlooked and that the Will follows the current intents of its owner.

Do you need to contest a Will due to someone’s advanced age? Contact Gerard Malouf and Partners to learn your options.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.