Will Validity – An Important Aspect of Estate Management

Having a properly executed will is a vital aspect of your estate management because a will that is not properly executed could be deemed invalid. This can be an expensive problem to fix, as well as being a time consuming and stressful process for your executors.

For example, a High Court case has recently found a will to be invalid partly because the will maker had dementia. However, want of form is only one reason a will may be deemed to be invalid by the court.

What are the requirements on you as a will maker?

There are also requirements on you, the person making the will. Referred to as testamentary capacity, there is a legal requirement that when you make your will you need to be in a healthy enough state of mind. Specifically, a state of mind and health that allows you to understand the consequences of the papers that you are signing.

Testamentary capacity is judged by the high court against three factors.

The first of these is to ask whether at the time of will making did they understand the size of their estate and did they fully comprehend the effect that making a will has on that estate.

The second is whether the will maker understood their moral duties as will maker.

The third consideration is that of mental capacity. Was the will maker, at the time of making the will, free of any mental defect that was extensive enough to influence them to gift their estate in a way that they would not have done without the mental incapacity.

In essence, these three factors are there to ensure that you fully understand the content of your will, the expanse of your estate, and how the will you’re making will affect that estate.

In the simplest of terms – you need to be able to understand what you own, who you want to leave it to, and why you’re doing so.

What could be considered to affect testamentary capacity?

A range of things could affect the testamentary capacity of a will maker. These include dementia and other long term capacity issues as well as acute conditions such as medical side effects or injuries.

It is not enough, however, to claim that someone does not have testamentary capacity due to the normal mental ability change commonly seen with age. For it to affect your testamentary capacity it must be something severe enough to genuinely affect your ability to understand your estate and impair your ability to make well informed decisions about it.

Dementia as cause for an invalid will

Recently, the High court found a will to be invalid. This decision was made in part due to the will maker’s dementia causing a period of delirium in the days surrounding the will signing.

The court was presented evidence that the individual was lucid enough to have conversations about the time and weather but they were not satisfied that this lucidity extended to complex matters such as their estate.

However, simply having a condition at the time of will signing does not automatically render your will invalid.

An example of this is that of an individual who gave instructions to his solicitor to draft a will for him while he was in the care of a mental health facility. The individual then underwent shock treatment that caused him to be confused and disoriented, however he signed his will that afternoon. The court rule that he did in fact have testamentary capacity when signing his will, and even if they hadn’t ruled that way – his will still would not have been invalid. The will is considered valid because he did have testamentary capacity at the time that he gave the instructions to his solicitor.

What is the moral duty requirement on a will maker?

It is recognized that there are people who you may owe a moral obligation to in order to make sure that they are properly looked after. This moral duty may refer to a spouse or children, step children, grandchildren, or even parents. The law does recognize that relationships are very individual and there is precedence of courts acknowledging moral duties owed to in-laws, siblings, or nieces and nephews.

This moral duty could be thought of in a simplified way as, ‘looking after your own.’

Don’t wait until it’s too late.

The cases discussed here are a good example of why you should get your affairs in order long before there can be a question over your testamentary capacity. The process of taking wills to court can be expensive, long, and upsetting for your loved ones who now have to deal with a legal disagreement as well as your passing.

By setting up a will early in your life and regularly updating it you can ensure that your will is valid. Updates are important to keep your will relevant and should be done when any major change occurs in your life – such as acquiring or selling properties, marriages forming or dissolving, or children being added to the family.