Making a Will

A person who is under the age of eighteen years cannot make a valid will and a person at common law attains a particular age at the commencement of his birthday.

Testator

The person who makes the will is called a testator and his capacity to make a will is dependent on his state of mind.{{more}} He must be of sound mind and body. When he makes a will during his lifetime, he is said to have died testate and his will would have to be probated so that his executor would distribute his estate to persons who have been named in the will. If he does not make a will, then it would be said that he died intestate, and the person who has priority would, according to law, apply to the court for a grant of letters of administration in order to distribute the estate of the deceased.

Testamentary capacity

When a person makes a gift to another in a will that would have effect after his death, then it is intended to be testamentary. There is a test that could be applied for testamentary capacity. The testator must have intended for his wishes to be carried our after his death; he must know the extent of the property which he is disposing and the nature of the claims, in that he must know the names of those persons whom he intends to benefit.

The same test is valid for a person who is subnormal, whether this condition is from “birth or as a result of impairment in his lifetime or through injury or physical or mental illness, senility or addiction.”

Mental illness

A testator who suffers from a delusion in the mind does not have testamentary capacity. He holds a delusion when he has a belief on any subject which no rational person would hold and it cannot be removed from his mind permanently by reasoning with him.

The testamentary capacity is relevant at the time when the will is executed, but if the testator gives her instructions to her solicitor to draft her will, it is immaterial that at the time of the execution (when she signs her name in the presence of two witnesses) she cannot remember it or she is incapable of understanding the clauses in the will.

There is a presumption that there is testamentary capacity on the face of a duly executed will. But the presumption could be rebutted depending on the circumstances. For example, it could be said that the person lacked capacity because of mental illness. But a party could rebut this by establishing that the will was made during a lucid (clear) interval.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com