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With people living much longer and our understanding of cognitive abilities improving, issues as to whether a person has mental capacity to make agreements is becoming increasingly prevalent. It is not uncommon to find Alzheimer’s disease or dementia as a contributory cause of death of many elderly people but just having dementia does not mean a person lacks testamentary capacity to make, alter or revoke a will.

A person may be capable of shopping for themselves but not for more complicated financial arrangements. Similarly, they may not have capacity to manage their financial affairs but may have capacity to make a will. People may present extremely well to strangers and appear capable but those who know them know they do not have capacity.

It is a complicated grey area, but this article will provide you with some general principles which need to be kept in mind, though this will vary on individual circumstances.

What is Testamentary Capacity

The classic definition of “testamentary capacity” for the last 150 years is that the testator (will maker):

  1. understand the nature of the will and its effects;
  2. understand the extent of the property the testator is disposing of in the will;
  3. can comprehend and appreciate possible claims to the estate which he ought to give effect; and
  4. has no mental disorder influence the disposing of the estate in a way which the testator would not have done if of sound mind.

Evidence from the solicitor who prepared/witnessed the will or the will maker’s doctor at the time may be required to prove testamentary capacity.

When does a Person Lack Capacity

Factors the court will consider in determining if a person had testamentary capacity include:

  1. The nature of the will, whether it is simple or complex;
  2. Terms in the will, whether some terms are irrational;
  3. The exclusion of people who would have a claim on the estate;
  4. Extreme age or sickness of the testator. It must be of such an extent that the illness or age affected mental faculties, it is not enough that they are just very ill or old;
  5. Undue influence of a person who stands to gain from the will.

The burden of proof is on a person who is challenging the will to chow the deceased lacked capacity.

How Witnesses Can Confirm Testamentary Capacity

Initially asking questions of the will maker (and medical staff if necessary) to be satisfied that they have testamentary capacity, or that they do not have a cognitive impairment. If there is any concern, further exploration will be required.

Things witnesses to a will should do when a person signs their will include:

  1. Asking questions to confirm the will maker is able to compare alternatives.
  2. Ensuring the will maker can list the key assets which form their estate, not just agree with a list presented to them.
  3. Breaking the questions down to smaller, more manageable questions. Complicated questions can confuse the most capable people.
  4. Ensuring the questions are not leading questions, such as:
    1. ‘Remind me, what did you want to do in your will?’
    2. ‘Can you remind me what assets you have?’
    3. ‘Remind me, how many children do you have?
  5. Giving the person time to answer questions and potentially some cues without leading, do not confuse a person trying to find their words with not being able to understand. It can be difficult for anyone to spontaneously retrieve particular pieces of information.
  6. Observing the will makers demeanour, are they calm or anxious/distressed/etc.
  7. confirm the will maker is not delusional, comments that a person is out for them or spying on them.
  8. observe whether the person looks healthy and well kept or not? If not, is that due to their circumstances in life or could this be because a cognitive impairment means they are struggling to look after themselves (ie forget to shower, cant cook for themselves, etc) In determining capacity, you need to be careful of religious and cultural norms. There are a lot of factors to consider when determining capacity and it is usually best to have a lawyer or doctor witness a will if there is any concern. Good practice will be for the witness to create a file note or draft an Affidavit of Due Execution detailing the steps they took to confirm that they considered the will maker had testamentary capacity.