UNDUE INFLUENCE - CAPACITY TO MAKE A WILL – TESTAMENTARY CAPACITY

Date: Mar 25, 2013
Document Type: Article

It is often said that concepts of testamentary capacity and knowledge and approval of a will are distinct, and that the issue of knowledge and approval only arises once it is found that a willmaker has testamentary capacity.

It does not matter what is the nature or form of the ‘mental disorder’ that detrimentally affects a willmaker’s cognition and judgment.

The question of testamentary capacity is not whether the willmaker did bring to mind the nature and extent of his or her property and those who might have claims upon the willmaker, and evaluated their respective claims, but whether the willmaker was able to do so.

That question must be answered in the context of the particular will in question.

The requirements for testamentary capacity are those laid down in Banks v Goodfellow.

Many willmakers, particularly aged and infirm willmakers, understand the significance of the act of making the will. Such knowledge is rarely lost unless the willmaker has an extremely severe disorder of the mind.

Many willmakers also understand in general terms the extent of their estate and, free of pressure, are capable of assessing what persons or institutions have a claim on their testamentary bounty and of evaluating the strength of those claims and discriminating between them.

But owing to extreme age, physical weakness and emotional fragility, an aged and infirm willmaker may not be capable of standing up to pressure imposed by others. When subject to such pressure the aged and infirm willmaker may not be capable of evaluating the strength of the claims of competing beneficiaries.

UNDUE INFLUENCE

Before probate of a Will is refused on the grounds of undue influence it must be shown that the will of the willmaker was overborne, that is, that the willmaker did not intend and desire the disposition but was coerced into making it.

In such a case the willmaker will not have known of and approved the contents of the will.

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