What is Testamentary Capacity?

05 July 2019

In order to make a Will, you need to have something called 'testamentary capacity.' What this means in essence is that you understand what you are doing and its implications. This article explains what testamentary capacity is and how it can be proven.

Testamentary Capacity Explained

When someone makes a Will, they must be fully aware of what they are doing and they cannot be acting under the influence of someone else. This is what testamentary capacity refers to, and it means that the person making the Will has sufficient mental capacity to understand the implications of what they are doing.

A Will could be challenged by someone claiming that the will maker (called the testator) didn't have this, and in that event, it could end up with the Court looking at the available evidence to try and establish whether the testator had testamentary capacity at the time of signing the Will. If it's found that the testator didn't have testamentary capacity, then this completely invalidates the Will.

Wills are powerful legal documents and if a Will is created under the influence of someone else or without testamentary capacity then this can have disastrous consequences. For this reason, there are clear guidelines as to what constitutes testamentary capacity.

Proving Testamentary Capacity

In order to prove that a person has testamentary capacity when making a Will, there are four very clear requirements.

These are that the person:

  • Understands that the Will deals with the distribution of their Estate on their death
  • Understands and recollects what is in their Estate
  • Understands if there are any people who could have a moral claim to their Estate
  • Is not suffering from a disorder of the mind or 'insane delusions'

If the validity of the Will is called into question after the testator has died then, in order to prove its validity, evidence would normally be presented to the Court that proves testamentary capacity. This will commonly be verbal and written statements from witnesses who can attest to the circumstances surrounding the Will writing. The Court may also consider whether the terms of the Will align with the wishes expressed by the testator, both before and after it was drafted, and they may also call in expert witnesses to provide evidence.

Reducing the Risk of a Successful Challenge

There are steps that can be taken at the time of making a Will to help prove testamentary capacity. This means that if the Will is challenged in the future, then this challenge is less likely to be successful. One of the best ways to ensure that the correct steps are taken to prove testamentary capacity is to get your Will drafted by a professional Will writer.

A Will writing professional should take steps to assess whether you have testamentary capacity at the time of making your Will. At Co-op Legal Services, our specialist Will Writers will carry out an assessment of capacity with you during your Will writing appointment. Details of this assessment will then be held on file and can be called upon as evidence if the Will is ever challenged in the future.

If we feel that additional proof is needed of testamentary capacity (if the testator is in the early stages of an illness, such as dementia, for example) then we may advise that a medical assessment is undertaken, or that a medical professional witnesses the signing of the Will.

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