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Capacity and making a will
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Overview in assessing capacity when drafting a will
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Wills and Administration of Estates – Capacity and making a willIf the will is invalid the testators estate will pass in accordance with the intestacy rules. The will has
not been revoked. Alterations made are effective. If documents are incorporated they have been
properly incorporated. The will deals with the deceased whole estate. The will has not been varied
by a claim under the Inheritance (Provision for family and Dependants ) Act 1975.
Banks v Goodfellow - the testator must have understood 3 things:
1. the nature of making a will and it`s effects
2. the extent of their property and
3. the claims to which they should give effect.
The requisite understanding should have existed at the date of execution of the will. Remember rule
in Parker v Felgate – show that:
1. mental capacity existed at the date of giving instructions for the will
2. the will was prepared in accordance with these instructions and
3. at the time of execution the testator understood that he was signing a will for which
instructions had previously been given.
The onus of proving mental capacity is on the person seeking to prove the will. There are 2
rebuttable presumptions:
1. Rational will – capacity is presumed where a duly executed will appears valid
2. mental illness continues.
If capacity is not proved the will cannot be admitted to probate.
Knowledge and approval must have existed at the date of execution. The onus of proof is on the
person seeking to prove the will. Rebuttable presumption that a testator with the requisite mental
capacity executed the will with the relevant knowledge and approval. A challenge to the will would
have to be made on the basis that the will was made as a result of fraud fear or undue influence or
that the necessary knowledge and approval was lacking because of a mistake. There is non
presumption where the testator is blind or illiterate or someone has signed the will on the testators
behalf. Need to draft a suitable attestation clause or there are suspicious circumstances.
Signature should be testators usual signature or mark intended to give effect to the will and the
signature is made or acknowledged by the testator in the presence of 2 witnesses present at the
same time and each witness attests and signs the will or acknowledges his signature in presence of
the testator. Beneficiary will lose gift if witness will or their spouse does.
Limited revocation in case of decree absolute effect as if spouse had died on date decree absolute
was made. Will can be revoked by a later will or codicil. Destruction “burning tearing or otherwise
destroying by the testator with the intention to revoke
S33 applies where:
1. will contains a gift to child or issue
2. the intended beneficiary dies before the testator leaving issue living or en ventre sa mere at
testator`s death . The gift will take effect to the issue.
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