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Testamentary Capacity

Life expectancy is increasing.  However, it does not follow that simply because the person is living that he or she has the mental capacity to make a Will.  The decision of Banks v Goodfellow sets out four questions which should be asked by the solicitor if there is any doubt as to capacity of the Willmaker to give instructions for a Will.  They are:-

  • Does the Willmaker understand the nature and effect of making a Will?  If the Willmaker does not understand the purpose of the visit to the solicitor or the reason why a Will is required then it is likely that he or she does not have testamentary capacity;
  • Does the Willmaker know the nature and extent of the assets held?  Of course, it sometimes happens that the Willmaker does not have precise details however if he or she had a broad outline of what the estate shall consist of then the solicitor should be satisfied.  However if a member of the family sitting next to the Willmaker giving the answers then the solicitor should be suspicious.
  • Does the Willmaker comprehend and appreciate the claims to which he/she ought to give effect.  In other words, the Willmaker should be made aware of who could contest the Will if that person is omitted from the Will.  If it is necessary for the solicitor to explain who could contest the Will.  The Willmaker should understand if the intended Will may precipitate a claim.
  • Is the Willmaker affected by a mental disorder or disorder influencing the disposal of his/her assets.  It is important to ascertain the health of the Willmaker particularly if he or she is showing signs of dementia or confusion.  If necessary, a letter from the treating GP should be obtained to assist in determining whether a person has testamentary capacity.

Questions of the Willmaker should be open ended and not leading questions.

If the Court determines (after the Willmaker dies) that he or she did not have testamentary capacity, then the Court can make an order that the Will be set aside.  In this event, the previous Will of the Testator shall become the last Will.  If there is not a previous Will, then the estate shall be distributed as provided for under the rules of Intestacy.  This may not reflect the wishes of the Willmaker.  The message is don’t leave making your Will to the last minute.

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