DeDominicis: ‘Testamentary capacity’ must be confirmed for estate planning

People writing or revisiting their will must show a capacity to understand the basic elements of their will.

My office is frequently graced with the delightful presence of seniors wanting to ‘re-do’ their wills.

legal docTheir reasons for this are numerous, and their history is certainly colourful. They may have old wills in place that need re-visiting or they may never have done a will at all (please don’t let that be you!).

As a solicitor, I have to satisfy myself that the requisite testamentary capacity is present in order for them to understand and execute a valid will. This requisite mental element can be basically categorized into two components:

1. The testator must understand “the nature of the act in which he or she is ‘engaged,’” that is, actually making a will. By this it is meant that “he or she should ‘intend’ by his or her act to make a disposition of property, effective on death”; and

2. The testator must be free of mental disorder.

The above two points seem simple enough, but if capacity is borderline, or if there are red flags or suspicious circumstances it is crucial that any solicitor acting in these circumstances confirms testamentary capacity in order to prepare a valid will for his or her client.

This is not as easy as getting a note from the testator’s attending physician stating that the patient is capable to instruct for and execute a new will. Case law shows that medical evidence, while persuasive, is not conclusive.

A solicitor is still under an obligation to conduct a legal capacity assessment, which has been suggested by case law to be as follows.

The testator ought to be capable of making his/her will with an understanding of:

1. The nature of the business in which he/she is engaged

2. A recollection of the property he/she means to dispose of (not necessarily every detail in his/her investment portfolio, but a general understanding of value is key)

3. The persons who are the object of his/her bounty (are his/her beneficiaries logical?) and

4. The manner in which it is to be distributed between them.

It is not necessary that the client be capable of understanding his/her will at the same level as a lawyer. The client must simply understand the basic elements of which his/her will is composed and the disposition of property.

I often see lack of testamentary capacity being alleged by disgruntled beneficiaries in situations where the testator suffered from dementia, Alzheimer’s disease, post-stroke and terminal illnesses. Some of these clients do indeed have the requisite testamentary capacity to understand and execute new wills, however, in these cases the solicitor must be even more vigilant to conduct the legal assessment and consult with the attending physician(s) to determine capacity.

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