Testamentary Capacity

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Testamentary Capacity is the ability to make a Will. This may be undermined by psychiatric illness or other factors.

The English case of Banks v Goodfellow (1870) sets out the factors required for a testator’s Will to be considered valid. A Will-maker should:

  1. Understand the nature of the act and its effects
  2. Understand the extent of the property of which he is disposing;
  3. Be able to understand and appreciate the claims to which he ought to give effect;
  4. iv. Be free of any disorder of the mind that would poison his affections, pervert his sense of right or prevent the exercise of his natural faculties.

The individual must understand the nature of the making of a Will, its effects and the extent of their property and possessions. The person must also be able to appreciate the claims to the estate, which he ought to consider.

However, the judgement also notes that “testamentary capacity does not require a sound and disposing mind in the highest degree otherwise very few people could make wills. It is enough if the mental faculties retain sufficient strength fully to comprehend the testamentary act”. Furthermore, “The Will-maker must clearly understand and make a sound assessment of all those things and all those circumstances which enter into the nature of a rational, fair and just Will”.

Psychiatric expert testimony may be required to determine issues relating to the likelihood that a person is or was capable of making a will.

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