The mental capacity required to make a will

Farming Legal Advice: Mental illness does not preclude the capacity to make a will

In order to make a valid will, the person making the Will must be of sound disposing mind. Adults are presumed to have the capacity to make a will unless proven otherwise. Picture: iStock

The death of 77-year-old Monty Python star Terry Jones last year has raised some interesting legal questions. His adult children challenged his will in which he left his home to his 38-year-old wife Anna Soderstrom. Terry’s children launched an ongoing High Court battle claiming that their father did not have the capacity to make a valid will as he was suffering from dementia.

The Irish law governing capacity to make a will can be found under Section 77 of the Succession Act 1965 whereby it states that in order to make a valid will, the testator/testatrix (the person making the Will) must be of sound disposing mind. Adults are presumed to have the capacity to make a will unless proven otherwise.

When taking instructions for the making of a will, it is, therefore, necessary to determine whether or not the client has testamentary capacity. It is important to be aware that testamentary capacity and mental capacity are not one and the same.  A person may have capacity for some legal purposes but at the same time lack capacity for others. Testamentary capacity is a legal test and requires a high level of capacity. Testamentary capacity, or broadly the test of ‘sound disposing mind’, is set out in Banks v Goodfellow. The testator must understand:

a) The nature of the act and its effects, b) The extent of the property of which he is disposing, and c) Be able to comprehend and appreciate the claims to which he ought to give effect.

Eccentricity or capriciousness does not necessarily indicate a lack of testamentary capacity.

Further, testamentary capacity is not an exact science. A client who is unwell may have lucid intervals and sufficient testamentary capacity at the time of instructions and execution.

It is important to note that mental illness does not preclude testamentary capacity. For example, someone who suffers with bipolar disorder may be capable of making a valid will. A person lacks capacity if their mind is impaired or disturbed in some way, which means they're unable to make a decision at that time. Examples of how a person's brain or mind may be impaired include: mental health conditions – such as schizophrenia, bipolar disorder or dementia.

In a case in 1999 Mr Justice Peter Kelly found where a testator, who has attained the age of 18 years and who is a diagnosed paranoid schizophrenic, understands the nature of the act which he is carrying out in the making of a will, and its effects, understands the extent of the property of which he is disposing, is able to comprehend and appreciate the claims to which he ought to give effect, and where no disorder of the mind poisons his affections, perverts his sense of right or prevents the exercise of his natural faculties or no insane delusion influences his will in disposing of his property or brings about a disposal of it which, if the mind had been sound, would not have been made, then he will be regarded as of sound disposing mind and as having testamentary capacity, and will be taken to have known and approved of, the contents of his will.

It is possible to challenge the validity of a will on the basis that the testator did not have capacity to make a will. The person making the claim must establish that the testator was incapable of making a valid will. The proof must go beyond merely identifying a mental illness or other condition which affects the mind. In the absence of medical evidence from the testator’s doctor, a court is likely to pay more heed to the evidence of the testator’s solicitor and of the people closest to the testator. Therefore, in order to succeed in challenging a will on the grounds of lack of capacity, a claimant must show that the testator did not understand the nature of what they were signing.

Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.

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While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.