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What is testamentary capacity?

When lawyers talk about testamentary capacity in will dispute cases they are referring to the mental capacity a person needs to make a valid will. The term has been around for centuries. It means that when a person makes a will she or he needs to have a sound mind and memory. The will-maker (known as the testator in legal speak) needs to be able to understand:

  • the property he or she has;
  • the nature and effect of making a will;
  • the moral claims of the people who she or he should name as beneficiaries when making the will.
What does the will-maker’s understanding of moral claims of people the will-maker should name as beneficiaries mean?

This can mean different things in different situations in will dispute cases but the general principle in estate litigation cases is that only a small amount of capacity may be required where property is disposed of fairly. However where abrupt and unfair changes are made, fuller and clearer evidence of testamentary capacity is required.

So for example if the will-maker was a widow with three children, the children would usually be considered to have a moral claim to be named as beneficiaries under the will. If the will-maker suffering from dementia signed a new will leaving all of his or her property to the Queen of England, the face value of the new will would strongly suggest that the will-maker lacked the mental capacity to understand the moral claims of the people (in this case, the will-maker’s children) who the will-maker should name as beneficiaries.

What is the duty of a solicitor in relation to testamentary capacity when preparing a will?

This can be a difficult situation. On the one hand, solicitors have no special expertise in assessing whether a client has testamentary capacity. On the other, the Court has said that a solicitor can reasonably be expected to recognise possible warning signs of lack of capacity such as advanced age, ill health, irrational behaviour, clear signs of lack of understanding, or plainly defective recollection of assets of family members. Further, the solicitor has a fundamental duty to comply with the client’s instructions.

Best practice suggests that solicitors should adopt a cautious and low threshold approach towards circumstances raising any concerns about testamentary capacity. The situation is doubly complicated where the solicitor does not have a history of acting for the client. In that case the solicitor needs to be doubly cautious.

If the solicitor has any concerns about testamentary capacity he or she should seek the client’s approval to contact the client’s GP or depending, upon the seriousness of the situation, an expert  geriatrician or psychiatrist as well as or others close to the client to discuss concerns. If the client is agreeable there are well established guidelines for the terms of the letter of instruction which should go to the medical practitioner.

What can I do if a mentally ill family member left a last will which I am concerned about?

In will dispute cases mental incapacity affects whether a will is valid or not. If you are unhappy about a will which a deceased family member or friend signed when he or she was not mentally capable of understanding what he or she was doing then you can lodge a caveat with the High Court. Once a caveat is lodged the caveat will prevent probate for the will being granted without notice to you. If you have lodged a caveat you will be given an opportunity to oppose the grant of probate for the will.

What does grant of probate mean?

The grant of probate is the first step in the legal process of administering the estate of a deceased person. In order for the administrators (the administrators are the persons who are named in the will as the executors. The executors have responsibility for administering the estate) to administer the deceased’s estate they need to apply to the High Court for a grant of probate.

Once probate is granted to the administrators they have the legal authority to sell and distribute the deceased’s property. Without a grant of probate the administrators cannot legally take control of the deceased’s property.

What is the procedure for challenging a will where a caveat has been lodged with the Court?

If the will-maker left in an irrational will, let’s say a will-maker who is suffering from Alzheimer’s is taken to a new solicitor (i.e. a solicitor who has not previously acted for the will-maker) by one of several children of the will-maker and the solicitor prepares a will that leaves everything to that child, then the executors named in the will should (and if there is already a caveat lodged preventing the grant of probate and the Court orders it, must) apply for probate in solemn form. That means that, in the case of an irrational will, the executors will have to formally prove that the will-maker made the will while she or he had testamentary capacity.

The executors will have to give notice of the application for probate to the deceased’s close family members and anyone else named as a principal beneficiary under an earlier will. This will allow the will-maker’s other children to also provide evidence regarding the will-maker’s mental capacity when the last will was made. The Court will be interested in whether the terms of the will are rational; medical evidence in relation to the will-maker’s mental capacity; evidence from the preparer of the will and evidence from family and close friends regarding the will-maker’s mental capacity at the time the will was made.

How does a diagnosed mental illness affect testamentary capacity?

In estate litigation cases if a person has a diagnosed mental illness, that person can still have testamentary capacity if the will-maker understands:

  • the property he or she has;
  • the nature and effect of making a will;
  • the moral claims of the people who she or he should name as beneficiaries when making the will.

So, for example, if a will-maker has been diagnosed with Alzheimer’s it may be that a medical assessment establishes that the disease is in its early stages so that the will-maker has capacity to make a valid will.

However in will dispute cases where the Court has evidence that a will-maker has a diagnosed serious mental illness the Court will usually presume that the will-maker lacked testamentary capacity. In that situation the Court will need proof that despite the will-maker’s mental illness she or he made the will during a sane and rational period.