What Level Of Testamentary Capacity Do I Need To Make A Will?

The level of mental capacity required to make a Will varies depending on the complexity of the estate and instructions given. The greater the complexity, the higher the testamentary capacity required. The Court will do its upmost to uphold the wishes of the deceased but there are measures that can be taken when the Will is being prepared and executed which can significantly reduce the possibility of the Will being challenged. Lorraine Burke from our Will Disputes Team looks at this in further detail. In the recent decision of Simon v Byford and others [2013], the Will of an elderly lady with mild to moderate dementia was upheld. She executed a straightforward Will in which everyone you would expect to benefit received equal and substantial inheritances. She was reminded on one of hergood days that her earlier Will favoured one of her children in particular, who was not present. That same day she decided to execute a Deed of Gift (held to be invalid) and a Will. A friend of the family who was a legal secretary was present and drafted the documents based on Mrs Simon's instructions with some input from other family members who were also present. The recurring message from Mrs Simon was that she wanted to treat her children equally and for this to be reflected in the new Will. As two of the beneficiaries were present while instructions were taken, the court had to consider whether Mrs Simon knew and approved of the contents of the Will. It found that she did. The judge favoured the evidence of the witnesses who...

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