A Will is a legal document that states how you would like your assets to be distributed when you die.
By having a valid Will you are able to give instructions on where your estate will be left, and you can name someone as your executor to carry out these instructions.
What is Testamentary Capacity?
A Will may be disputed for a number of reasons by disgruntled beneficiaries.
One issue that can arise is a lack of ‘testamentary capacity’. This means that a person may be lacking the soundness of mind to draft a legally binding Will.
If such a dispute arises, this can be costly for the estate due to legal and court fees not to mention the emotional strain it puts on family members.
Can I protect my assets?
There are ways to make sure that the testamentary capacity of a person can be defended to minimise the prospects of such of a claim being successful.
A good way to draft your Will if you think there is a chance someone may challenge it later due to lack of testamentary capacity is to:
1. FIRSTLY- Have an initial meeting with your lawyer where they will take Will instructions which will need to be signed in case something were to happen to you; and
2. SECONDLY- See your doctor for a test of capacity or cognitive function and have them prepare a report of the results; and
3. THIRDLY- Go back to your lawyer with the report which can be copied, certified and kept with the Will and finally, sign the Will.
This will almost eliminate the possibility of a successful claim being made due to lack of testamentary capacity.
If your capacity is ever in doubt with your lawyer, they will ask you a series of questions and take notes as to why you are changing your Will which provides an extra layer of protection against possible claims.
Although there is more effort involved with having your Doctor test for capacity or your cognitive function, it ensures that if claims against the Will are made due to lack of testamentary capacity they are not likely to be successful.
This article was written by Nicholas Rowe
