3-Step Assessment of a Will-Maker's Testamentary Capacity
The court may rule to set aside a will if those disputing it present evidence of the testator's lack of testamentary capacity at the time of creating or changing the will. Wills and estates lawyers will tell you that such disputes are even more common in cases where the will-maker is very ill or old when creating the will.
While the final decision lies with the court, wills and estates lawyers have a duty to assess their clients' capacity. In fulfilling this duty, your lawyer will stick to the following guidelines.
Getting Instructions Directly from Testator
Your lawyer will want a one-on-one with you to get the instructions from you rather than a third party. The lawyer may also insist that family members or interested parties who may be beneficiaries of your will not be present. This will help to avoid undue influence.
Your lawyer may allow for a non–family member who is qualified to translate or even interpret on your behalf to be present and facilitate the issuing of instructions. You'll also need two witnesses to be present during the will signing.
Asking Leading Questions
Some leading questions can go a long way in assessing your testamentary capacity. Wills and estates lawyers ensure that they make these open-ended so you can fully express yourself. The lawyer will take notes and file your responses.
These questions centre on assessing if you understand who your family members are and what your estate includes. Who are your family members? What are the assets you want to leave to your beneficiaries? Who gets what and why? These are some of the common questions to expect.
Seeking Expert Medical Opinion
If you suffer from a medical condition that may, in one way or the other, affect your ability to make rational decisions, the best defence against a will challenge is consulting with an expert. Your wills and estates lawyers will consult with your doctors and obtain a professional opinion as to your testamentary capacity.
If your primary doctor or general physician cannot give a satisfactory assessment, then specialists such as geriatric psychiatrists may need to be called upon to conduct the evaluation. Testimonies from medical practitioners carry a lot of weight in court should a will challenge case come up.
Professional wills and estates lawyers have a responsibility to try and guard your will against possible disputes. The highlighted tips, among others, help with assessing testamentary capacity.
To learn more, contact a resource like Waters & Co Lawyers.
