Mental Illness and Wills

A will is only valid if the person making it has ‘testamentary capacity’, which is the basis of the phrase ‘being of sound mind’. In simple terms, having testamentary capacity means that a person:

 

- can understand the meaning of the will;

 

- has some sort of understanding of what assets the will deals with;

 

- is aware of their moral obligations and who will benefit from the will; and

 

- can understand in broad terms the effect of the will.

 

Recently, a woman died several years after writing a will which, on the face of it, seemed rational. It was, however, disputed after the grant of probate on the ground that the woman had lacked testamentary capacity when the will was made.

 

The court heard that the woman had a long history of mental illness and was likely to have been mentally disturbed when the will was drawn up. As the mental condition from which she suffered was severe to the point of being disabling, the court revoked the grant of probate.

Lanyon Bowdler

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