Capacity Flashcards
At what age can a person make a valid will?
A testator must be 18 or over to make a valid will under Section 7 of the Wills Act 1837.
Are there any exceptions to the age requirement?
Yes, those in military service can make a valid will before turning 18.
What are the legal requirements for making a valid will?
A testator must satisfy:
• Testamentary capacity
• Knowledge and approval of the will’s contents
• Formal requirements for execution
What is the common law test for testamentary capacity?
A testator must:
• Understand the nature of making a will and its effects
• Appreciate the extent of the property they are disposing of
• Recognise moral claims they ought to consider
• Not suffer from a disorder of the mind that distorts their judgment
What level of understanding is required for the nature of making a will?
The testator must understand that they are signing a will, but they do not need to understand every detail of its contents.
How much must a testator understand about their property?
• General recollection of what they own
• Appreciate approximate value of assets
• Do not need to recall every item or know precise valuations
Does a testator have to provide for certain people in their will?
No, but they should appreciate any moral responsibilities they may have.
Can a person with a mental disorder still have testamentary capacity?
Yes, as long as their mental disorder does not affect their judgment regarding the terms of the will.
When must a testator have capacity for the will to be valid?
• Must have capacity at the time of execution
• If they had capacity when giving instructions and the will was prepared accordingly, it may still be valid
Does a fluctuating mental condition affect testamentary capacity?
• A testator with intermittent capacity (e.g., lucid days) can still make a valid will
• Temporary conditions or medication effects do not automatically invalidate a will
What is the ‘Golden Rule’ in will drafting?
• If client is elderly or seriously ill, a medical practitioner should assess and record their capacity
• Not legally required but reduces risk of future disputes
Who has the burden of proving capacity?
• Propounder of the will must prove capacity
• If the will appears rational and duly executed, capacity is presumed
• Challenger must raise doubt with evidence
What happens if a will’s validity is challenged on capacity grounds?
If the challenger raises sufficient doubt, the burden shifts back to the propounder to prove capacity.
How does the Mental Capacity Act 2005 relate to testamentary capacity?
The Act introduced a statutory test of capacity, but the Banks v Goodfellow common law test remains relevant for wills.
Can a will be made on behalf of someone who lacks capacity?
• A solicitor cannot accept instructions from someone who lacks capacity
• A court can authorise a statutory will on their behalf
