Making a will if capacity is in question

10 November 2022

Will photo

It is well known that a will is a legal document which sets out how a person wants their assets to be distributed once they die. If you are over the age of 18, you can make a will - provided you have testamentary capacity. This article provides some useful information about testamentary capacity and what to do if testamentary capacity is in question.

In very general terms, a person will have the necessary capacity if, at the time they execute the will, they:

  • know what a will is;
  • know the amount and type of property they are disposing of;
  • understand the moral claims to which they should give effect when deciding to whom to leave their property; and
  • do not suffer delusions about any person who would expect to receive an entitlement under a will.

Could the will be challenged?

It is important to address the issue of capacity in some circumstances because a will can be challenged on the grounds that the will maker did not have sufficient capacity when signing the will. This arises most frequently where the will maker is ill, for example, in hospital on medication, or elderly and suffering from dementia.

It is more difficult to set aside a will on grounds that the will maker lacked testamentary capacity if:

  • the will is prepared by a competent lawyer who took appropriate instructions from the will maker, and retains detailed records about those instructions, and was satisfied the will maker had the requisite testamentary capacity to make a will; and
  • a written report is obtained from the will maker’s doctor or specialist, at around the time of execution of the will, confirming that the will maker had testamentary capacity.

What steps to take if capacity is in question?

Where there is a possibility that the will may be challenged on the will maker’s death, on the basis of a lack of capacity, it is important to obtain contemporaneous medical evidence from the will maker’s treating doctor or, in some cases, a geriatrician, confirming the will maker has capacity. It is prudent for the doctor to conduct a medical examination to determine this and then provide a written report confirming their opinion.

It would be ideal if the doctor could be present when the will maker signs the will and, even better if the doctor is one of the two witnesses to the will. In all likelihood, this will not be possible. In this case, the written report from the doctor should be obtained as close as possible to the date of execution of the will.

Having a medical report stating that, in the doctor’s opinion, the will maker had capacity and then on the same day the person provided instructions and signed their will, places the will maker in a stronger position so far as capacity is concerned.

How your lawyer can help

It is not the role of a lawyer to be an expert in assessing the capacity of their client.

However, a lawyer can be involved in carrying out a “legal” assessment of the will maker’s capacity and may provide useful evidence if a will is challenged on the basis of lack of capacity.

If you are worried because you know someone who wants to make a will and may not have capacity or may be in the early stages of dementia, then it is prudent to encourage them to consult a lawyer who is experienced in will making and to do this as soon as possible.

It is also prudent to ensure the lawyer is made aware of this potential difficulty because it may be necessary for the will maker to first attend their doctor's surgery for an appointment with the doctor, and to provide a satisfactory written report to the lawyer, ahead of the will making appointment.

This article contains general information only and does not take into account your specific circumstances. If you or someone you know wants more information or needs help or advice, please contact us.