• sarahmoschella5

Making a Will and Testamentary Capacity

Updated: Mar 6, 2021

In order to make a Will a person must be of sound mind, memory and understanding. This is usually referred to having ‘testamentary capacity‘.

A typical challenge against a will is made by arguing the deceased didn’t have the necessary testamentary capacity to make their will. It is therefore important to understand how it is determined whether the deceased did in fact have the capacity to make their will at the time it was created. The courts have shown testamentary capacity can be determined by considering whether the deceased :

  1. understood the nature of a will and its financial effect;

  2. understood the extent of their estate (i.e. what assets and liabilities they had);

  3. had the ability to understand the risks of various people being able to make claims against their estate (i.e. who they were and to what extent.)

  4. was not suffering from any mental disorder or delusions which includes considering whether the distributions set out in their Will would have been made by a person of sound mind.

Unfortunately capacity can be difficult to determine; particularly trying to do so after the event. It’s easy to determine if someone loses capacity from a sudden accident but what happens when someone loses capacity over a long period of time? In the latter it will be hard determine at what time testamentary capacity was lost.

Someone can be seriously ill but still be of sound mind. Similarly the fact that someone commits suicide shortly after making their will does not automatically create a presumption of incapacity.

It’s worth noting it is still possible for someone to be of sound mind but still be ‘unfair’.

To make things more difficult, lucidity can come and go more than once. If someone was lucid at the time they make their will then their Will should stand.

As an example we had a recent case whereby the health tribunal declared a person had no testamentary capacity whilst they were still alive at the end of 2011. Twelve months later however the tribunal declared the same person had recovered and regained their capacity. That’s quite normal but what made this case interesting however was that the person had made a Will between the 2 determinations. The issue therefore became whether this person’s Will was valid. Obviously the Will-maker recovered sometime during this period; but when did they recover and more importantly was it before or after the will was made? This case involved consideration of numerous medical and treatment records and in the end was something which only the court could have decided had the beneficiaries of the estate not decided to reach a settlement.

If there is any doubt as to whether the person making a Will has or had testamentary capacity you should seek legal advice at the time the will is being made and during the administration of their estate.

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