Was the Deceased Capable of Making a Will?

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A person must have the mental ability to understand their will and be able to give full instructions with regard to that will. Otherwise it may not be valid and can be challenged in the courts.*

If you want to challenge a will on this basis, you must show evidence of this lack of capacity; a will won’t be set aside lightly. The facts of your case are important; each case is different and will be dealt with based on its own facts and circumstances.

Firstly, to put in place a will, a person must be over 18. Beyond that, there are four key conditions to fill to prove that a person had proper capacity:

  1. The person must understand that they are making a will and they must be able to understand what a will does.
  2. The person must know the assets that he is dealing with in his will.
  3. They must be able to appreciate who is likely to have an interest in his estate and who is he including and excluding from the will.
  4. The person must be free from any disorder of the mind that would prevent them from making a valid will.

Just because you are sometimes mentally unwell doesn’t necessarily mean you cannot make a will. In an interesting case called “O’Donnell v O’Donnell”, the will of a man with paranoid schizophrenia was held to be valid. This was because the man’s condition had been well managed, he had no symptoms at the time he was preparing his will and he had been thoughtful and conscientious in distributing his estate.

Generally you have to have the mental capacity to prepare a will (often called “a sound disposing mind”) at the time you execute (sign) your will.

Picture this situation: you visit your solicitor and you give him instructions to write your will in a certain way. You have the mental capacity to write your will at that time. However, before you get to sign the will, you have a massive stroke and this leaves you disorientated and unable to communicate. Your solicitor comes into you will the will and reads it out to you. You nod and make an “X” at the bottom of the will to show your approval. Is the will valid? Do you have the proper capacity to sign a will?

In a case with similar facts, the Supreme Court held that the will is valid if you fulfill certain conditions. You must have had proper mental capacity when you gave the instructions and the will must have been prepared according to those instructions.  When you are signing, if you are satisfied that the will reflects your instructions that you gave when you were well, the will is valid. This is the case even if you can’t remember in detail the contents of your instructions or understand them when they are read out to you.

“Excellent service. Staff were well informed and extremely courteous. I found no fault in the service and I will certainly be returning with any other business I may have.”

C. O’C. Probate Client

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