Making A Will: Mental Capacity

Making A Will: Mental Capacity
In order to have a valid will, there are a number of elements that need to be met, and most importantly the person making the will needs to have the requisite level of mental capacity. So, if you want to make a Will, or you are wondering about whether a Will should be rightly challenged, you should pay close attention to the explanation below.
But what is mental capacity?
In essence, the following must be present if mental capacity if present (Carr & Homersham (2018), re-stating the principle in Banks & Goodfellow (1870):
  1. The person making a will :
    1. needs to have the ability to understand the nature of the act of making a Will and its effects;
    2. must understand the extent of the property that the Will deals with; and
    3. must also have the ability to understand the moral claims of potential beneficiaries (for example, spouse, child, etc).
  2. The person making the will must not be suffering from a condition that affects their normal decision making.
How can you prove capacity?
There are a number of ways that capacity can be proven. Where a will was drafted with the assistance of a solicitor, that solicitor can give evidence in the following forms:
  1. Recount of a conversation prior to the singing of the will;
  2. A written acknowledgement by the testator;
  3. Video or audio recording evidence.
Evidence can also be found in statements from friends and family who interacted with the deceased at or around the time that the will was made.
If there is concern about a person’s mental capacity at the time of making a Will, it is always a good idea to seek a medical report about whether the testator is suffering from a condition and how the condition impacts the testator’s decision making.
The existence of a condition, for example dementia or bi-polar, does not automatically mean that the person is incapable of making a will. Instead, the evidence should address the question of how severe the condition is , and whether it impacts the answer to any of the questions outlined in Banks & Goodfellow.
Assessing capacity is not always obvious, and can be a subtle and complex task. If you wish to make a Will, you should always contact a solicitor to assist you.

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