Testamentary Capacity
Although not often an issue the first question that might arise for the lawyer is the testamentary capacity of the testator.
The usual authority quoted concerning testamentary capacity is Banks v Goodfellow (1870) LR 5 QB 549 at 565. There Cockburn CJ said:
“It is essential to the exercise of such a power that a testator shall understand the nature of the act, and its effects; shall understand the extent of property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
Testamentary capacity is not a matter of the opinion of the lawyer. If there are doubts then ask questions and take notes of the answers to them. It is for the Court to decide capacity and the notes may be of assistance.
This preview is an excerpt from the following publication. this publication for access to all the commentary and precedents.
Wills - Step by Step Guide & Precedents
by By Lawyers For Lawyers author - C M Teng
Overview
This Wills Step-by-Step Legal Practice Guide and Precedents contains precedent wills and guidance for the following three situations:
- for a single testator
- for spouse to spouse, and then children; and
- using schedules for use in blended family and other more complex situations
As with all Step-by-Step Guides this guide takes you sequentially through a Wills matter from getting the matter underway and taking instructions, right through to finalisation.
A wide range of issues are discussed including testamentary capacity, revocation, executors, and estate duty. This guide includes a Library of Provisions.