It is well known that a Will is a legal document which sets out
how a person wants their assets to be distributed once they
If you are over the age of 18 you can make a Will -
provided you have capacity.
In general terms a person will have the necessary capacity if
know what a Will is;
know of the amount and type of property they are disposing
understand the moral claims to which they should give effect
when deciding to whom to leave their property; and
are not delusional or suffering from a mental illness at the
time they sign their will.
Who decides on capacity?
It is not the role of a lawyer to be an expert in assessing the
capacity of their client.
However, a lawyer can be involved in carrying out a
"legal" assessment of the Will maker's capacity.
If there is a question about someone's mental capacity to
make a will, then an opinion, preferably in writing, should be
obtained from that person's treating doctor. The opinion should
state that the Will maker has the required testamentary capacity to
make a Will.
When should the Will be signed?
It would be ideal if the doctor could be present when the Will
maker signs the will and even better if the doctor is one of the
two witnesses to the will. In all likelihood this will not be
Where there is the likelihood of the Will being challenged on
the Will maker's death on the basis of lack of capacity, it is
important to obtain contemporaneous medical evidence from the Will
maker's treating doctor or in some cases a geriatrician
confirming the Will maker has capacity. It is prudent for the
doctor to conduct a medical examination to determine this and then
provide a written report confirming his opinion.
We feel that the Will maker should on the same day provide
instructions to the lawyer and sign the Will.
Having a medical report stating that, in the doctor's
opinion, the Will maker had capacity and then on the same day the
person provided instructions and signed their Will, places the Will
maker in a strong position so far as capacity is concerned.
Could the Will be challenged?
It is important to address the issue of capacity in some
circumstances because a Will can be challenged on the grounds that
the Will maker did not have sufficient capacity when signing the
Will. This arises most frequently where the Will maker is ill, for
example, in hospital on medication or elderly and suffering from
It is difficult to set aside a Will on grounds that the Will
maker lacked testamentary capacity if the Will is prepared by a
competent lawyer who took appropriate instructions from the Will
maker and was satisfied the Will maker had the requisite
testamentary capacity to make a will.
How your lawyer can help
If you are worried because you know someone who wants to make a
Will and may not have capacity or may be in the early stages of
dementia and you are not sure, then it is prudent to encourage them
to consult a lawyer who is experienced in Will making and to do
this as soon as possible.
It is also prudent to ensure the lawyer is made aware of this
potential difficulty because as we suggest, it may be necessary for
the Will maker to first attend their doctors surgery for an
appointment with the doctor being able to provide a satisfactory
written report so it can be taken to the lawyers office ahead of
the Will making appointment but on the same day.
It is then a matter for the lawyer to be in a position to
actually prepare the Will on the spot for checking and signing.
Then the Will maker will have a Will that is dated the same day as
a medical report saying they had capacity.
As you can see there is a degree of planning that is needed, so
speak to your lawyer first to ensure that all the plans are worked
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The person named as an executor in the deceased's will has the right to arrange for the burial of the deceased's body.
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