Testamentary Capacity

Date: Apr 01, 2012
Document Type: Newsletter

A will may be disputed for a number of reasons and one issue that can arise is a lack of ‘testamentary capacity’ which may mean that the person is lacking the soundness of mind to draft a legally binding will. It is important when a person drafts a will that they have sufficient decision-making capacity when the will is drafted, otherwise the will may be considered invalid, and the courts may decide that a person has died intestate (without a valid will) and their assets will be distributed in line with intestacy laws.

Testamentary capacity and disputed wills

‘Testamentary capacity’ is a term used to describe a person’s legal and mental capacity to make or alter (for example through a codicil) a valid will. A will is sometimes disputed because it is alleged that the person was not of sound mind and not aware of what they were doing and it may also be claimed that the will does not accurately reflect the wishes of the deceased person.

There are many reasons why a person may lack sufficient testamentary capacity and wills are sometimes drafted under circumstances that may cast doubt over a person’s mental capabilities such as the person was suffering from a terminal illness during the drafting of the will or perhaps the person was suffering from senility or dementia are just some of the reasons why a person may lack testamentary capacity.
However, it is important to note that illnesses such as dementia may not necessarily mean that a person lacks testamentary capacity and there have been instances where the courts have ruled the will maker was ‘lucid’ when the will was drafted, even when the person was suffering from a condition that may have impaired their capacity to make sound decisions.

Who has testamentary capacity?

Generally speaking a person 18 year of age or older will be considered as having testamentary capacity, which means that children usually aren’t regarded as having testamentary capacity. However, there may be exceptions, such as when a child is married for example.

How can disputes over testamentary capacity arise?

The doctrine of testamentary capacity is meant to protect individuals who may be vulnerable to undue influence and are liable to draft a will in a manner that may not accurately reflect how they would have bequeathed their assets if they had been of sound mind. 

For a will to be considered valid, the person who is making the will must have an awareness of the consequences of their actions and if their testamentary capacity is disputed by a beneficiary, the court will consider a number of factors when determining whether a person was of sufficient soundness of mind. If one of the essential elements of producing a will is absent, then a person may not be seen to have testamentary capacity.

As a general rule, the testator must be aware of what they were drafting and why they were drafting it, and have understanding of the nature of their assets, who their beneficiaries are, and are not suffering from a condition or illness that would prevent them from making a rational decision.

If there is any reason why a person may fear that their testamentary capacity may be in dispute, there are a number of actions that may be undertaken by a person to minimise issues from arising, such as attaching a medical certificate to the will, or witnesses can also be asked to make formal statements such as affidavits testifying to the person’s mental capacity during the drafting of the will.

Anyone who is contemplating drafing a will and have any concerns about their testamentary capacity should seek the assistance of a lawyer who will be able to help. 

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