How is Testamentary Capacity
Tested?
In
most jurisdictions, the test for testamentary
capacity required to execute a will is based in case law. The person
making or changing their will (the testator) must understand what making a will
is and what it entails; they must also understand the extent of the property
they are disposing of.
The
testator should also be able to appreciate and understand the claims to which
their will should give effect, and they should possess no disorder of the mind
that could distort their sense of right or inhibit the exercise of their
natural faculties regarding the disposal of their property by their will.
Proving Testamentary Capacity
Sometimes,
a will may be contested on the grounds that the individual executing it lacked
testamentary capacity. This usually happens posthumously, often when a will has
entered probate and an aggrieved heir contests it. Where this is the case, the
person making the contestation is typically required to prove that the decedent
was mentally unsound, causing them to be unable to recall family members or hold
insane delusions regarding them.
To
resolve such cases, a forensic psychologist or forensic psychiatrist may be
called upon to evaluate the decedent’s testamentary capacity by reviewing
relevant emails and letters, medical records, and videotape of the will being
drafted. Signs of undue influence may also be checked for.
Even
if testamentary capacity is found to be lacking, courts may rule that the
testator experienced a lucid moment or temporary period of lucidity at the
point the will was executed.
The Role of the Doctor
Inheritance
and succession planning experts – such as attorney-at-law Edgar Paltzer – know
that while countries around the world differ in how they deal with testamentary
capacity, in many jurisdictions they follow a ‘golden rule’ whereby a medical
practitioner is involved in the process when an elderly person, or an
individual who has suffered a serious medical illness, is making or altering a
will.
However,
in some jurisdictions the solicitor drafting the will assumes responsibility
for ensuring the testator has capacity. Solicitors should seek advice from a
medical professional if they are unsure about testamentary capacity.
For
more information about testamentary capacity, take a look at the embedded PDF.
