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PLEASE NOTE: This article was published on the date listed below and may now contain information that has since been updated or changed. We have retained this article as it may still contain helpful comments. However, we advise you to make an appointment to see us for the most up to date information on this topic.

December 2006

Making a Will

The need for testamentary capacity

Every adult needs a Will. However, the vexed question we frequently face is “does the client (testator) have testamentary capacity?”. All too often the complaint is heard (usually from some family of the deceased) that the Will was made at a time when the testator was so infirm he or she could not have understood what was being done.

At the core of testamentary capacity is the principle that a Will must be made with the knowledge and approval of the testator. The relevant time when the testator is required to have testamentary capacity is at the time when the will is executed. In a case from 1870, it was held: “as to the testators capacity, he must in the language of the law have a sound and disposing mind and memory. In other words he ought to be capable of making his Will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty and the manner in which it is to be distributed between them”

Sometimes a very finely balanced exercise needs to be undertaken to assess testamentary capacity. This may include obtaining a report from a medical practitioner who should test:

  • Whether the testator understands what a Will is, and what the consequences are;
  • Whether the testator knows the nature and extent of his/ her property (though not in detail)
  • Whether the testator knows the names of close relatives and can assess their claims to his property; and
  • Whether the testator is free from undue influence or an abnormal state of mind that might distort feelings of judgements relevant to making a Will.

In conducting the examination the medical practitioner should see the testator alone but should ask relatives and/or friends to check the accuracy of factual statements. In some cases opinions of specialist psychiatrists or geriatricians are required.

Such a process may seem extreme. However, having a Will is not sufficient; the Will must be legally valid to be effective. Hence, the need to answer “does the client have testamentary capacity”?