Testamentary Capacity and Probate

When the court considers whether to make a grant of probate in relation to a will it asks a number of important questions for example; is the will the final declaration of the deceased person’s intentions?

This is a difficult question. Some people may be ill or elderly at the time they make a will. They may not be able to understand their finances in the same way as a “normal” person in their position. They may not be able to understand the effect of the will they are making.

A will is only valid if the will maker has “testamentary capacity” at the time he or she made the will. To have testamentary capacity, the will maker has to:

  • Understand the nature of making a will, and the effect of a will generally;
  • Understand the nature of his or her assets and liabilities;
  • Understand the obligations he or she owes to various people and parties who might benefit from the will maker’s will; and
  • Not be suffering from a “disorder of the mind” that affects his or her understanding of the above issues.

When wills are made by will makers suffering from extreme age, mental illness, alcoholism or other drug addiction the question of testamentary capacity arises.