Date: Mar 05, 2013
Document Type: Article

The approach to the issue of determining testamentary capacity has changed little since the 1924 decision of Bailey in which the following principles were set out:

1.    The onus of proving that an instrument is the will of the testator rests on the party asserting it. If not discharged the court will decide against the instrument.

2.    This onus refers to the burden of establishing the issue. It continues during the whole case and must be determined on all of the evidence.

3.    The onus is initially discharged by establishing a prima facie case

4.    A prima facie case is one which having regard to the circumstances so far established by the testimony of relevant witnesses, satisfies the Court that the will is the last will of a free and capable testator.

5.    A person may freely make his/her testament, however old they may be. It is not the integrity of the body but that of the mind that is required.  

6.    While the Court considers the facts of each case, it looks at:

  • the nature of the will itself from the point of simplicity or complexity, rational or irrational provisions and the exclusion or non-exclusion of beneficiaries
  • the exclusion of any person having a claim upon the testator such as a surviving spouse or child
  • extreme age, sickness, or any person having motive and opportunity and exercising undue influence taking a substantial benefit.

Once the person seeking to uphold the will establishes a prima facie case, it is up to the party seeking to challenge the will to show reasons why it should not be implemented. The mere proof of serious illness is not sufficient. There must be clear evidence that undue influence was in fact exercised or that the illness of the testator so affected his/her mental faculties as to make him/her unequal to the task of disposing of his/her property.

The opinion of witnesses as to testamentary capacity can be of little weight on the direct issue. The court looks at the facts the witnesses state rather than their opinions. However opinion evidence from a relevantly qualified medical practitioner can often be very useful.

The onus of proof is that required in civil cases, namely on the balance of probabilities rather than the onus of proof required in criminal cases which is beyond reasonable doubt.

If you believe someone is being encouraged to make a will where they do not have the capacity to do so, phone us for advice.

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