Capacity to make a Will

August 18, 2016 by admin · Leave a Comment 

In order to have the capacity to make a Will (testamentary capacity), the person making the Will (testator) must know what they are signing. While mental illnesses such as dementia and Alzheimer’s might sometimes prevent a person from having capacity, others can validly make a Will if they:

  1. Understand what a Will is and what it does
  2. Can recall what property they own
  3. Both remember and give consideration to the people that would ordinarily have a right to receive assets under a Will (eg. a spouse)
  4. Do not suffer delusions about people who would be expected to receive an entitlement under the Will (eg. a spouse)

The historic case of Banks v Goodfellow established this test and held that although the deceased was having delusions about his butcher, he still had testamentary capacity due to the fact that the butcher was not someone who would ordinarily be expected to have a right to receive assets under a Will.

How can we help?

This area of law is not black and white. If you have any questions about testamentary capacity please contact our office and we can provide you with more detailed explanations and advice.


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