Testamentary capacity - what is it and why does it matter?

In order to make a valid Will, it is necessary for you to have testamentary capacity. Wills are very important legal documents and you need to be able to make an informed decision about who will handle your estate, and who should receive benefits from your estate. Given the significant effect of these decisions, the law requires you to have a certain level of mental capacity to do this, known as testamentary capacity. 

Testamentary capacity means that you need to be of sound mind, memory, and understanding. You must know of the property you have to distribute, understand the effect of the Will you are proposing and know of any possible claims which may arise.  Further, your decisions must not be influenced by any mental incapacity. 

Solicitors must always ensure that the interests of their clients are promoted and protected.  Assessing testamentary capacity assists in protecting a vulnerable client from exploitation, thereby protecting their legal interests.  It also protects against a Will being made with gifts given which the client would not have made while they had testamentary capacity. Solicitors have a duty both to you and to the people named in your will. A part of this duty is that we must ensure that you have testamentary capacity when you make a Will. This process includes asking you a series of questions, often unrelated to the Will itself, to ensure you are lucid and understand the decisions you are making and your general circumstances at the time. In addition to this, we need to be confident that the decisions you are making are your own, and not affected or influenced by people in your life. When we meet with you to sign your Will, we will ask anyone you bring with you to leave the room so that we can ensure this is the case. 

If there is doubt about your mental capacity at the time you made your Will, and a person disputes the validity of your Will, your executor and beneficiaries can end up in legal proceedings.  Testing a person’s testamentary capacity is a process that avoids such an application being made, or if made, being successful. We keep thorough records of any assessments of capacity we make so there is plenty of evidence that your capacity was tested and the decisions you made reflect your true intentions. 

Of course, we are lawyers and not medical professionals and there are times when there is doubt about a person’s capacity arising from health issues.  If this is the case, we can seek an evaluation by an appropriate doctor to assist in making the assessment.   

If you wait until something happens, such as an accident, or until you are older to make a Will, you may be caught in a position where you no longer have testamentary capacity and are unable to make a Will. This is why it is vital to make a Will early, and update it as your life circumstances change, to ensure you always have something in place that accurately reflects your wishes should something happen.