How can you prove your mental capacity when drafting a new will?
Testamentary capacity is the legal term used to describe the mental state required to make a valid will. If a person does not have testamentary capacity, their otherwise legal will may be challenged and declared invalid. This means that the property will be distributed according to the laws of intestacy, which may not be in accordance with their wishes.
In order to have testamentary capacity, a person must be able to:
Understand the nature of the act of making a will;
Understand the extent of their property;
Understand who their beneficiaries are;
Understand the effect of their will.
There are several underlying factors which may affect a person’s testamentary capacity, including:
Mental illness or disability: If a person is suffering from a mental illness or disability that affects their ability to understand the nature of the act of making a will, the extent of their property, who their beneficiaries are, or the effect of their will, they may not have testamentary capacity. This usually doesn’t include common mental health conditions such as anxiety, depression or bipolar disorder, however, if you’re in doubt, it’s good to consult a medical professional.
Dementia and Alzheimer's disease: Any progressive brain disorder that can cause memory loss, confusion, and other cognitive problems. If a person with such a conditions makes a will, it may be challenged if it is clear that they did not have the capacity to understand the nature of the act of making a will or the effect of their will.
Drugs or alcohol: If a person is under the influence of drugs or alcohol when they make a will, their will may be challenged if it is clear that they did not have the capacity to understand the nature of the act of making a will or the effect of their will. If you are taking strong prescription medication, you should check with your doctor whether it could impact your mental capacity.
Pressure or coercion: If a person is pressured or coerced into making a will, their will may be challenged if it is clear that they did not have the capacity to make a free and independent decision.
While you are not required to prove your mental capacity when writing a will, there are some actions which you can take when writing your will to reduce the likelihood that a valid will is successfully challenged in court:
Make a clear and coherent will: The will should be clear and coherent and should not be ambiguous or confusing. This will help to show that you understood the nature of the act of making a will and the effect of your will.
Sign the will in the presence of two witnesses: For any will to be valid, two witnesses must be present at the same time and must see you sign the will. Your witnesses should also be able to attest to your mental state, and if required, make a statement in court that you appeared to be of sound mind and that you understood the nature of the act of making a will.
Get a medical opinion: You can request a medical letter from a doctor or other healthcare professional who can assess your mental state. They will need to confirm that you have the capacity to understand the nature of the act of making a will, the extent of your property, who your beneficiaries are, and the effect of your will. We recommend this option in any situation where the presence of a pre-existing medical condition may cause others to question the validity of your will.
We also recommend adhering to the following best practices when drafting a new will:
Make sure that you are mentally alert and clear-headed when you make your will.
Do not make your will under pressure from anyone else.
Take your time and read your will carefully before you sign it.
Make sure that you understand all of the terms of your will.
Have two witnesses who are not beneficiaries or closely related to beneficiaries witness your signature on the will.
These can help to ensure that your will is valid and enforceable, and reduce the likelihood that it is later challenged in court.
