Mental or Testamentary Capacity To Make a Will

Date: May 20, 2011
Document Type: Article

Any person can make or change their will provided they understand in general terms:

  • what a will is, i.e. a document setting out what is to happen to their property when they die
  • the amount and type of property they have
  • their moral obligation to provide for persons such as their surviving spouse and children; and
  • they are not delusional or suffering from a mental illness at the time they sign their will.

Age, even great age, does not prevent a person having testamentary capacity to make or change their will.

It is not even necessary that the willmaker be able to read or write, as long as appropriate steps are taken to make sure that they understand the will.

If there is a question about a willmaker’s mental capacity to make a will, then an opinion, preferably in writing, should be obtained from that person’s treating doctor, that the willmaker has the required testamentary capacity to make a will. Ideally the doctor should be present when the willmaker signs the will and the doctor should be one of the two witnesses to the will.

It is a good idea to use a lawyer with experience working in the area of disputed wills to not only draft the will but arrange for its execution and witnessing. This may avoid later problems and disputes and, place the parties seeking to enforce the will in the best position to do so.

If a person does not have legal capacity to make their own will, application can be made to the Supreme Court for authority to draw up a will on behalf of that person. The Court must be satisfied that:

  • the person does not have legal capacity
  • the will as drawn up by another person reflects what the person would most likely want if they did have capacity
  • it is reasonable in the circumstances to approve the will.

Not many wills are set aside on the grounds that the willmaker lacked the mental or testamentary capacity to make the will.

It is very hard to set aside a will on grounds that the willmaker lacked testamentary capacity if the will is prepared by a competent solicitor who took appropriate instructions from the willmaker and was satisfied the willmaker had the requisite testamentary capacity to make a will.

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