Wills & Estates FAQ's
How can disputes over testamentary capacity arise?
The doctrine of testamentary capacity is meant to protect individuals who may be vulnerable to undue influence and are liable to draft a will in a manner that may not accurately reflect how they would have bequeathed their assets if they had been of sound mind.
For a will to be considered valid, the person who is making the will must have an awareness of the consequences of their actions and if their testamentary capacity is disputed by a beneficiary, the court will consider a number of factors when determining whether a person was of sufficient soundness of mind. If one of the essential elements of producing a will is absent, then a person may not be seen to have testamentary capacity.
As a general rule, the testator must be aware of what they were drafting and why they were drafting it, and have understanding of the nature of their assets, who their beneficiaries are, and are not suffering from a condition or illness that would prevent them from making a rational decision.
If there is any reason why a person may fear that their testamentary capacity may be in dispute, there are a number of actions that may be undertaken by a person to minimise issues from arising, such as attaching a medical certificate to the will, or witnesses can also be asked to make formal statements such as affidavits testifying to the person’s mental capacity during the drafting of the will.
