Wills and testamentary capacity

Many court cases relating to Wills centre around the capacity of the deceased person. A person is said to lack testamentary capacity if they do not understand or comprehend what they are doing. In those circumstances that person is incapable of making or changing a Will.

An experienced solicitor, when confronted with a situation where there is doubt about a client’s testamentary capacity, will normally interview the client alone and go through a series of question designed to determine whether or not the person does have sufficient understanding to make or change a Will. Some times the advice of a medical practitioner will be sought to further add to the evidence of the person’s testamentary capacity.

The same procedure is normally adopted where the person wants to make a power of attorney or to appoint an enduring guardian.

In the case of Wills, the Supreme Court does have power to authorise the making of a Will by a person who lacks testamentary capacity. If a Court order is made, the Will is signed by the Registrar of the Court. This is a very complex procedure and rarely used.

If there is any doubt about whether a person lacks the testamentary capacity to make or change a Will, it is wise to seek competent legal advice. By doing so, protracted and expensive litigation after the person dies can sometimes be avoided.