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Testamentary capacity

For a will to be valid, the person making the will must be of sound disposing mind (that is, have the necessary testamentary capacity)  at the time of the making of the will. 

From a solicitor’s perspective, this issue may become relevant at two points in time:

On receiving instructions to execute a will.

Where there is an issue as to the testamentary capacity of a proposed testator, the solicitor who has received instructions to draw the will would be well advised to make inquiries of the proposed testator’s general medical practitioner as to whether or not the individual in question has the requisite testamentary capacity to execute such a document.

Where the medical practitioner is satisfied that such person is of sound disposing mind, it would be best practice for the solicitor to obtain an affidavit of testamentary capacity from such practitioner.

Once the will is executed, the said affidavit and original will should be maintained together in the solicitor’s offices until such time as it is necessary to prove the will.

Practitioners should note that where a proposed testator is already a ward of court, it is necessary to obtain an order from the President of the High Court before a will may be executed by the ward in question. 

When the testator dies and application is made to the Probate Office to prove will.

Within a Probate Office context, questions of testamentary capacity do not arise until a testator has died.  When an application is made to the Probate Office to prove a deceased person’s will and to issue a Grant of Probate in the deceased’s estate, the will in question will be regarded by the Probate Office as having been made by a person of sound disposing mind unless there are indicators which would raise a concern as to the testamentary capacity of the testator. 

Such indicators are as follows:

  1. Testator died in a psychiatric institution or Alzheimer/dementia care unit.
  2. Testator died a ward of court.
  3. The death certificate of testator indicates any one of the following causes of death either as a main cause of death or a co-existing condition: alzheimers, dementia, cognitive impairment.

The onus is on the solicitor to inform the Probate Office if any of the above applies. As a general principle, where such indicators manifest, an affidavit of testamentary capacity may be required by the Probate Office.

Affidavit of testamentary capacity.

Where an affidavit of testamentary capacity has already been sworn by a medical practitioner at the time of execution of the will, no issues will be raised by the Probate Office. 

Where one has not been sworn at the time of execution of the will and it is now evident that one or more of the above indicators is apparent, the Probate Office will examine the will to determine if there is any potential for conflict if the will was admitted to proof. 

For example, if a testator leaves all of his estate to his spouse or in the event of the spouse predeceasing to his children then no issue will be raised as to the testamentary capacity of the testator.  These are persons who might be expected to benefit under the testator’s will and seeking an affidavit of testamentary capacity in this instance is not necessary. 

However, if a testator leaves his property to a stranger or to one member of his family to the exclusion of other members of his immediate family, it is highly probable that an affidavit of testamentary capacity will be sought in the matter. It is important to note that each case will be considered on its own merits.  As a general principle, where there is a potential for conflict, the requirement for the production of such an affidavit will arise.

On occasion, a considerable period of time has elapsed since the date of execution of the will and the date of death. This fact of itself will not override the requirement foran affidavit of testamentary capacity.  Passage of time does not of itself allow the Probate Office to draw an inference that the testator had the requisite capacity to make the will at the time in question. Each situation will be viewed within the context of its own set of circumstances.

The preferred evidence as to testamentary capacity of a testator is from a medical practitioner. If the medical practitioner of the testator at the time of execution of the will is deceased and the medical practitioner who has taken over the practice of the deceased’s practitioner has no access to the medical notes of his predecessor, we will accept an affidavit from the solicitor who took the instructions and drew the will in question. 

On occasion, the Probate Office will accept an affidavit of testamentary capacity from a medical practitioner who was not the testator’s medical advisor at the time of execution of the will but instead became his/her medical advisor thereafter. This is acceptable in a situation where:

  1. the testator’s original doctor is deceased and
  2. his/her more recent doctor has known the testator for a number of years since then and
  3. during this period the testator has displayed good health and issues of mental capacity have only became evident at a later and perhaps more recent point in time.

 

Affidavits of testamentary capacity are preferred to letters from medical practitioners.

 
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Content reviewed: May 2017