A person must be "of sound mind, memory and understanding" to be able to make a valid Will.
This means that the person must be sufficiently clear in his/her understanding and memory to know on his/her own, and in a general way:
- The nature and extent of his/her property;
- The persons who are the natural objects of his/her bounty;
- The extent of what is being given to each beneficiary; and
- The nature of the claims of others who are being excluded.
A person making a Will may be diagnosed with dementia, and still be able to have sufficient mental capacity to fulfil or to satisfy the test set out above. Even if the person suffering from dementia has delusions, that may not disqualify them as having sufficient capacity.
The relevant time in determining capacity is at the time that the instructions are given for the preparation of the Will. Even if a person’s dementia worsens prior to the signing of the Will, it can still be valid, as long as the individual knew that they were executing a Will for which they had previously given instructions.
As an advisor, questions of capacity can affect you in a number of ways:
- May call into question the instructions you are receiving from your client;
- If your client’s Will is later challenged as invalid due to incapacity, you may find yourself called to court as a witness to give evidence about your knowledge and impressions of the client’s understanding at the relevant time. Your notes and files may become critical forms of evidence;
- You may want to encourage your client to seek legal advice and assistance when preparing or revising their Will. The lawyer’s job is to assess capacity, and the lawyer’s evidence is often the deciding factor when courts make a finding on capacity.