When a person (the ‘testator’) draws up a will, they must have ‘testamentary capacity’ for the will to be valid. A recent case has highlighted how the assumption that the creator of the will has testamentary capacity becomes less certain in cases in which the testator’s health is in decline.
Testamentary capacity is the ability to know and understand the implications of the will being made – the ‘being of sound mind’. It is normally regarded as a given, so that the burden of proof is placed on anyone contesting a will on these grounds to show that the testator did not have testamentary capacity. However, if the testator’s health is failing when a will is changed or a new will drawn up, the court may well look for positive evidence of testamentary capacity, especially if the provisions of the will are very different from those in an earlier will.
In a recent case, an elderly man made a new will shortly before his death, superseding an existing home-made will. The new will made his daughter his sole beneficiary and executor. However, it was discovered that a few months before his death, he had given much of his property to his second wife, who was the sole beneficiary under his earlier will.
There was a difference of opinion over whether the testator was suffering from delirium when he made the new will and also when he transferred the property to his second wife.
The issues arising were:
· whether the testator had testamentary capacity at the time the second will was made and when the transfers of the property were completed;
· whether the property transfers were the result of undue influence being exerted by the second wife; and
· whether the earlier will had been properly executed.
In the view of the court, the presence of delirium did not prove that the testator lacked testamentary capacity. However, in view of his declining health, the court was unwilling to accept that he ‘understood the extent of the property of which he was disposing’, which is a key element in the testamentary capacity test. Accordingly, the earlier will stood. Although the testator was physically dependent on his wife, that did not constitute undue influence, so the earlier transfers of property were also valid.
