It is well known that a Will is a legal document which sets out how a person wants their assets to be distributed once they die. If you are over the age of 18 you can make a Will – provided you have testamentary capacity. Testamentary capacity is often a legal test.

In general terms a person will have the necessary testamentary capacity if they:

  • know what a Will is;
  • know of the amount and type of property they are disposing of;
  • understand the moral claims to which they should give effect when deciding to whom to leave their property; and
  • are not delusional or suffering from a mental illness at the time they sign their will.

A person is presumed to have testamentary capacity until proven otherwise.  There have been many cases where a person with dementia or Alzheimer was found to have moments of clarity and accordingly had testamentary capacity.

Where there is the likelihood of the Will being challenged on the basis of lack of testamentary capacity, it is important to obtain contemporaneous medical evidence from the Will maker’s treating doctor or geriatrician about the deceased’s cognitive state on the day of signing the Will.

It is difficult to challenge a Will on grounds that the Will maker lacked testamentary capacity if the Will is prepared by a competent solicitor. The test for capacity is a legal test and lawyers are experienced in determining if a person has testamentary capacity.

If you are concerned that a person may not have capacity then it is prudent to encourage them to consult experienced estate lawyers as soon as possible who can then refer the person to appropriate specialist for assessment or provide alternative solutions regarding the person’s estate such as a statutory or court made Will.

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