Some people, such as minors, are generally considered permanently incapable of making a will under the common law; However, minors serving in the military have the right to make a will by law in many jurisdictions. In South Africa, however, one acquires the ability to make a will at the age of 16. The mental capacity required to make a will is much lower than the legal standards for other jurisdictional requirements, such as entering into a contract. If a person is unable to draw up a will, the validity of the will may be challenged. The party challenging the will has a duty to prove, by clear and convincing evidence, that the testator`s mental capacity influenced the will. Testimonability requirements are minimal. Some courts have ruled that a person who does not have the capacity to enter into a contract can still make a valid will. Although the wording of laws or court decisions varies from jurisdiction to jurisdiction, the test generally requires the testator to be aware of this: therefore, when assessing the capacity to draft a will, practitioners should remember that the modern practical approach to case law, the testator`s potential to understand and make decisions, does not focus exclusively on its actual understanding. Also, remember that this is not a memory test.
Testators may have a poor memory, but still have ability. The presumption of legal capacity If a will is rational, professionally drafted, apparently regularly drawn up and drafted by a person whose legal capacity is not in doubt, there is a presumption of validity of the will. This presumption can be rebutted by a will challenger, who demonstrates that there are real doubts about the ability to pay. At this stage, the burden of proof shifts to the ownership of the will in order to prove that testamentary capacity existed at the time of execution of the will. [7] In the common law tradition, testamentary capacity is the legal term of art used to describe a person`s legal and intellectual capacity to make or amend a valid will. This concept has also been called healthy mind and memory or disposition of mind and memory. A person only needs to have sufficient mental capacity to draw up a will at the time it is written. A will is not declared invalid simply because the testator has lost his or her ability to make a will with age. The legal test implies that a typical plaintiff in a testamentary dispute is a disgruntled heir who believes he or she should have received a larger share than he or she received under the will. Once the disputing party has discharged the burden of proof of the testator`s lack of competence, the burden of proof then shifts to the party who presents the will to prove by clear and convincing evidence that the testator had the necessary legal capacity.
Lawyers for people whose capacity to make a will could be questioned often have a will recorded on video. On video, they question the testator about his property and family and review the contents of the testator`s will. Here are some situations in which a testator may not have been able to testify: Even if you can prove that the testator was not in good health, you may still have to prove that the mental incapacity caused the deceased person to write their will unfairly or irrationally. The party who wishes to contest a will bears the burden of proving that the testator was not guilty at the time the will was drawn up. You must prove that this lack of testamentary capacity existed at the time of its creation. In addition, the threshold of will has traditionally been kept low to allow older persons to make a will in their later years, and it was unlikely that Parliament would have overturned this policy without notice. It was therefore concluded that the Mental Capacity Act does not override or amend existing case law and that Banks v. Goodfellow and its assigns remain in effect. Courts can evaluate several elements to determine mental performance. In general, a person is considered mentally capable of forming a will if, at the time of writing and executing the will: It is believed that adults have the capacity to make a will. Legal disputes over the capacity to make a will usually revolve around allegations that the testator did not have the mental capacity to make a will due to senility, insanity, insanity or other integrity. Essentially, the doctrine requires that those who challenge a validly executed will prove that the testator was not aware of the consequences of his or her conduct during the execution of the will.
Evidence, such as witness statements or doctor`s documents, about the testator`s mental state and mental incapacity at the time of execution of the will would likely be necessary to prove testamentary incapacity. These documents could go back decades. “Will capacity”. Merriam-Webster.com Legal Dictionary, Merriam-Webster, www.merriam-webster.com/legal/testamentary%20capacity. Retrieved 11 October 2022. Kerry Morgan-Gould is General Counsel at Ashfords LLP, @Ashfords_Law. The factors considered in determining whether a will was drafted by undue influence are: Ability to make a will The ability to make a will is the mental capacity required to make a valid will. The current test is Banks v Goodfellow (1870). [8] This case concerned the validity of John Banks` will. In modern terms, he would most likely be described as a paranoid schizophrenic.
He suffered from illusions that he was being persecuted by demons (they were sometimes visible to him) and also by a deceased local grocer. His will was challenged on the grounds that he was mentally ill and therefore unable to make a will. [9] The will was made following a jury trial before Brett J. at the Cumberland Spring Assizes in 1869. On appeal, this decision was unanimously upheld by a panel of four Queen`s Bench appeal judges. The will turned out to be valid, uninfluenced by his delusions and considered rational, as it was in favor of his only close relative (who also lived with him).