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Capacity and the mind of the testator

Capacity and the mind of the testator

Contents

Age

In order to make a valid will, the testator (a person making a will) must be 12 or over when they sign the will.

Testamentary capacity

The testator must have the requisite mental capacity when they signed their will. This testamentary capacity has been defined as 'soundness of mind, memory and understanding'.

This requires a testator:

  • To understand the nature of the act of making a will
  • To know which persons they should consider as possible beneficiaries
  • To be able to understand the property of which they are disposing
  • Not to be suffering from any delusion or disorder of mind which influences the provisions of their will

If the testator lacked the requisite mental capacity at the time they signed their will, then generally the will is invalid.

There is a presumption that, unless the contrary is proved, the testator has capacity, so the burden of proving that the testator lacked testamentary capacity falls on the person who seeks to prove, after the testator's death, that the will is invalid.

If the will appears rational, then that helps towards establishing that the testator did have testamentary capacity.

Practical precautions

If there is any doubt as to whether the testator had the necessary testamentary capacity to make the will, it may be advisable to arrange for a medical practitioner to examine the testator at the time the will is to be signed to verify their mental capacity and to have that medical opinion recorded. It will also make practical sense to ask the examining practitioner to witness the will.

Undue influence and fraud

A will must not be made as a result of either the undue influence or the fraud of another person.

Undue influence means coercion; i.e. the testator is coerced into making a will (or part of a will) which they do not want to make. Generally, considerable pressure must be exerted before there is any chance of a finding of undue influence.

Fraud consists of deceiving the testator. For example, it would be fraud to tell a testator that a potential beneficiary had done or said something of which the testator would disapprove, when they had not.

Lack of knowledge and approval

Generally, a testator must know and approve the contents of their will at the time that they sign it.

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