What makes a Will valid?
The basic requirements are as follows, the testator (the person who makes the Will) must:
- Have the capacity to make a Will (testamentary capacity)
- Have the intention to make a Will and
- Comply with the prescribed formalities
What is testamentary capacity?
Testamentary capacity is the legal term used to describe a person’s legal and mental ability to make or alter a valid Will. It is essential to establish that the testator has the required capacity to make a Will. Even if evaluating capacity would be more important for elderly clients, it ought to be measured for all clients proving Will instructions as opposed to solely the elderly or those who have intermittent capacity. This is because if the testator lacks testamentary capacity, the Will becomes invalid.
The legal test to make sure that a testator has capacity has been established in the case of Banks v Goodfellow (1870) LR 5 QB 549. The person propounding the Will must show that the testator:
- Understands the nature of making a will and its effects
- Understands the nature and extent of the property they are disposing of
- Understands the nature and extent of the claims which they ought to give effect
- Have no disorder of the mind that would affect their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will
The level of understanding of the testator can vary according to the complexity of the will and the extent of the assets of the testator and the claims on the latter.
The test of testamentary capacity is not one of memory. The testator may have a weak memory and have capacity. Also, the testator may be able to assess the information and understand it but may choose not to and still have capacity.
Assessing testamentary capacity without requesting a medical opinion
When assessing if the client passes the above test, both the questions asked to the client and their responses should be recorded on the Will file.
It must also be recorded if according to the testamentary capacity assessment performed, the client can do the following:
- Retain information which are relevant to decisions relating to the disposition of their estate
- Use and weigh up that information to help with their decision making
- Communicate their decisions
Elderly or infirm testators
In addition to the test for testamentary capacity, if the client is elderly or has suffered a serious illness, a contemporaneous medical opinion confirming testamentary capacity would be useful. There is also the possibility of obtaining a remote capacity assessment.
Asking a medical practitioner to witness the testator’s Will (could be difficult to organise this) or attend its execution could be useful as well.
In case where it is not possible to obtain a medical opinion or for a medical practitioner to witness or attend the execution the following steps needs to be taken:
- The client has to be informed that there is a risk that the Will may be successfully challenged on the grounds of lack of capacity
- The client needs to provide his consent as to whether he wants to proceed
- The advice given and the client’s decision needs to be recorded and retained on the Will file
Disclaimer: The above information is not intended to be legal advice. Please contact us for further advice on your individual matter.