A will is only valid if the will-maker was of sound mind and able to think rationally at the time that he or she made the will. If the will-maker did not have sufficient mental capacity to make a will at the time that the will was signed, the court can declare the will invalid.
Requirements for testamentary capacity
For a will-maker to have had sufficient mental capacity to make a valid will, he or she must have had sufficient understanding of four things:
- The nature and effect of making a will;
- The extent of his or her estate;
- The claims of those who might expect to benefit under the will; and
- What the will-maker intended to do with his or her property under the will.
Assessing mental capacity
The court will look at all the circumstances when determining whether the will-maker had mental capacity, including whether the will-maker disposed of their property fairly and in accordance with moral dictates. If they have not, or they have made abrupt or unfair changes to their will, the court is more likely to find that the will-maker did not have testamentary capacity.
Impact of subsequent regained and lost capacity
The courts have held that even if the will-maker subsequently regained capacity and approved of their will, the will is still invalid if it was made at a time when the will-maker lacked capacity. However, if the will-maker had capacity at the time that they gave their lawyer instructions for their will, the will may still be valid even if they had lost capacity by the time that they signed the will.
Challenging the validity of will for lack of mental capacity
Read about the process to challenge the validity of a will on the grounds of a lack of mental capacity here.
