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Preserve it and save: how conditional exemption can protect your heritage... and your wallet
Charles Richardson
For a Will to be valid, amongst other things, the person making the Will (known as the “testator”) must be of “sound mind”.
The test for capacity to make a Will (otherwise known as “testamentary capacity”) is based on case law which states the testator must:
- Understand the nature of making a Will and its effects;
- Understand the extent of the property which they are disposing;
- Be able to comprehend and appreciate the claims to which they ought to give effect; and
(i.e. they may have greater moral obligation towards certain family members than others to leave them something in their Will, and they must be capable of identifying who those people are) - Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.
The testator should be able to understand and make decisions such as:
- Who should be appointed as executor(s) and why.
- Who is given what in the Will.
- Whether a beneficiary’s gift be outright or conditional.
- That if they give money or assets away during their lifetime, the beneficiaries’ interests will be diminished or extinguished.
- That a beneficiary may die before them.
- The differences between their existing and anticipated new Will (if applicable).
- The reasonably foreseeable consequences of making or not making a Will at this time.
The level of the testator’s understanding will vary according to the complexity of their Will, their assets and the claims upon them.
What happens if an individual lacks testamentary capacity?
A Will is invalid if a testator makes or changes it without capacity.
If a Will needs to be made or changed and the testator lacks capacity, an application can be made to the Court of Protection to make a Statutory Will on their behalf.
How we can help
We have a wealth of experience making applications to the Court of Protection for Statutory Wills. If this is something you need assistance with, please contact us.
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