Elderly woman making a will.


There is a test which lawyers use to determine if someone has the mental capacity to make a will. One part of the test is “does the will-maker understand the nature and the extent of the property of which he or she is disposing?”


This question arose when 89 year old Maria Quaggiotto left most of her estate to one of her two sons. The disinherited son challenged the validity of the will stating that his mother did not understand her estate which she had inherited from her husband. It consisted of a variety of businesses, land, cash and shareholdings in four family companies.


Ms. Quaggiotto knew that her property consisted of the family businesses and she knew she had investments, savings and chequing accounts. She did not know the details of these assets. The judge found that she did have the requisite capacity and stated “I do not believe that the law requires a testatrix to have an encyclopedic knowledge of her assets. This is especially so when there is an extensive estate. It is sufficient for the testatrix to have a general knowledge of her assets which I find that Ms. Quaggiotto had.”


Deborah Todd Family Law Victoria

Deborah A. Todd