Capacity to make a Will and its effects

Capacity to make a Will is one of the key conditions necessary for the validity of a will. One’s capacity to make a Will is determined from their legal and mental capacity.

Legal Capacity to make a Will

Under Common law, the legal and mental capacity of someone to make a Will is referred to as testamentary capacity. Looking at the legal capacity, the convention or general rule applicable is that only adults can make a Will. The exception to the above rule is a privileged Will. A privileged will allows members of the Military who are below the age limit of adulthood (below 18 years). Usually, a person below 18 cannot make a will, but when such a person is a member of the Military and in ‘warlike’ situation makes a Will, such a Will is valid. However, it is not necessary that such a Will must be witnessed by two persons. The usual formalities in making a will are dispensed with.

Mental Capacity to make a Will

We must also consider the mental state of the testator. A person is said to mental capacity to make a will, when he is corpus mentis, that is, has a sound and disposing mind at the time he gave instructions, and at the time he executed the Will. A person is said to have mental capacity as laid down in Banks v. Goodfellow. It was held that what constitutes a sound and disposing mind is a question of fact, that a person who can converse rationally and conduct his business is not sufficient to prove mental capacity. The most prominent issues of incapacity arise from unsound mind, senility, drunkenness and undue influence. The propounders of a Will has to prove that the testator’s had mental capacity where it becomes an issue. The following tests were put forward in the judgment by Cockburn C.J., in the case of Banks v. Goodfellow (supra) –

• The testator must understand the nature of the act and its effects as regards making the will.
• He must understand and recollect the extent of the property he intends to dispose of.
• He must understand and appreciate the nature and extent of the claims upon him as regards to those he intended to distribute his property to.
• Further to the above point, the manner in which the property is distributed must be rational that no disorder of the mind has poisoned his affection or perverted the exercise of his will

The burden of Proving Testamentary Capacity

There is a general presumption that a Will is be made with testamentary capacity. However, this presumption can be rebutted. Once the challengers of a will have been able to establish that a will is made without Capacity, the burden to prove that the testator understood the will he made, shifts to the propounders of such a Will.

Illiterates & Blind persons

An illiterate has the testamentary capacity to make a Will or attest to a Will. However, such illiterate must have what is called an illiterate jurat inserted in the Will. Also, a blind person can make his Will but a blind jurat has to be included in the Will.

A person suffering from an Unsound mind – the Exception

Generally, a person suffering from an unsound mind doesn’t have the testamentary capacity. However, the exception is that such a person must have gotten a medical report from a doctor showing that as at the time the Will was made, he had the understanding and knew the implication of making the will and it was certified by a doctor. The good news is that the law recognizes lucidity period. There is a rebuttable presumption that a testator had the testamentary capacity even though he suffers from a mental disorder, and even when he continues to suffer from such disorder until the Will is executed and that the mental disorder affected the Will. In the case of BANKS V. GOODFELLOW, the presumption was rebutted as it was proved that the testator made the Will and went about his normal activities even though he was suffering from an unsound mind.

Making a will at a very Old age

Extreme old age does not impute a lack of mental capacity. The Will of a person who is sane at the time of giving the instructions for the preparation of the Will but insane at the time of signing it may be valid or invalid depending on the facts of each case. If the instruction was personally given to the Solicitor, the Will will be held to be valid. See PARKER V. FELGATE. Conversely, if the instruction was given through a third party /lay agency to be further communicated to a solicitor it will be held to be invalid. See SINGH v. ARMICHAND.

Steps Solicitors should take to help against a likely challenge of a Will

Precautionary measures are to be taken by a Solicitor with respect to one’s testamentary capacity; hence a confirmatory statement signed by the Solicitor that the testator had testamentary capacity is important. See RE WALKER. Getting a medical report by a medical practitioner who examined the testator confirming the mental capacity of the testator is also important. Also, in a situation where a Will might likely be contested for lack of testamentary capacity, Solicitors are now expected to go the extra mile to do a video recording as at the time of making the will. This helps the argument of the propounders of a Will in case the Will is challenged. It also helps to show that there was no undue influence by the propounders of a Will.