Monday, January 25, 2016

Challenging a will due to the lack of testamentary capacity

A recent post listed the five main ways in which a will can be challenged

One of the aspects listed was the ability to challenge a will due to the will maker’s lack of testamentary capacity when signing the document.

As set out in previous posts, there are a number of critical issues that must be addressed to ensure that a will maker does possess sufficient testamentary capacity to avoid a situation where their will is held to be invalid.

One technique that is being used increasingly in situations where there is some potential concern about testamentary capacity is ensuring that detailed medical evidence is created at the time of drafting and ultimately signing a will. This evidence can include:

  1. having a will maker’s regular doctor provide an opinion as to their testamentary capacity on the date of signing the will; 
  2. having a specialist medical practitioner assess a will maker, solely with reference to the criteria for testamentary capacity; and 
  3. retaining the medical evidence together with a detailed file note by the lawyer who prepared the will.