TESTAMENTARY CAPACITY
by Rob Miller
A Will which on its face has been properly signed
and witnessed gives rise to a legal presumption that the willmaker
had the capacity to make the Will or in other words had testamentary
capacity. A person disputing a Will on the ground that the willmaker
lacked testamentary capacity is required to produce evidence raising
doubts about the willmakers’ competency. Where the whole of the
evidence is sufficient to throw doubt upon the deceased willmakers’
competency, a Court must rule against the validity of the Will
unless satisfied that the willmaker was of sound mind, memory and
understanding when the Will was executed or when instructions were
given to make the Will. Testamentary capacity means that the
willmaker understood what property was being disposed of by the Will
and appreciated the persons for whom he or she was morally bound to
provide for in the Will.
Extreme age or grave illness or alcoholism may
provide evidence of a lack of testamentary capacity but will only
displace the legal presumption of competency if there is evidence
that the willmakers’ mental facilities had been so affected as to
make the willmaker unequal to the task of disposing of his or her
property. Where a willmaker fairly disposes of his property amongst
those for whom he or she was morally bound to provide, a very small
amount of capacity is needed. However, full evidence of capacity
will be required where no provision or apparently inadequate
provision is made for those for whom the willmaker was morally bound
to provide.
Where there is suspicion that the Will does not
express the intention of the willmaker, then those matters must be
affirmatively proved so as to avoid a Will being set aside by reason
of undue influence. Factors which may cause suspicion arise when a
person who prepared the Will receives a benefit under it, when a
willmaker is illiterate or blind or seriously ill when the Will was
signed and when persons having a natural claim under the Will are
excluded from the Will. Mere suspicion will not establish undue
influence. What must be proved is actual coercion of the mind of the
willmaker so as to produce a result which does not express the
intention of the willmaker.
Claims of testamentary capacity or undue influence
are commonly commenced by family members of the willmaker who stand
to benefit should the affected Will be set aside. The procedure
usually adopted in such claims is to lodge a caveat requiring the
executor named in the Will to prove the Will “in solemn form”. The
evidentiary onus of establishing an absence of testamentary capacity
rests with the party disputing the Will. A person alleging undue
influence upon the willmaker also bears the onus of proving that
matter.
Rob Miller is a lawyer at Miller Bou-Samra Lawyers
and advises in Will claims.
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