Testamentary Capacity

Testamentary Capacity is the legal term of art used to describe a person’s legal and mental ability to make or alter a valid will.
To have testamentary capacity, the author of the will must understand the nature of making a will, have a general idea of what he/she possesses, and knows who are members of the immediate family.
Inherent in that capacity, is the ability to resist the pressures or domination of any person who may try to use undue influence on the distribution of the testator’s estate.
The leading authority on testamentary capacity is the judgment in the case of Banks V. Goodfellow (1870) 5 LR Q B 549. Where it was said that, what constitutes sound and disposing mind, is a question of fact. In that case, it was stated that a testator must understand the following for him/her to have testamentary capacity;
1. The nature and effect of making a will.
2. The extent of his/her estate.
3. The claims of those who might expect to benefit from the testator.
4. That no disorder of the mind shall poison his/her affections, pervert his/her sense of right or even prevent the exercise of his/her natural faculties that no same delusion shall influence his will in disposing of it which, if the mind had been sound, would not have been made. The most prominent issue on incapacity arises from unsound mind, drunkeness and undue influence.
In Balonwu V. Nezianya (1959) 3 E.R.L.R 40 the testator’s will was attacked by the defendant, his eldest son to whom he gave five pounds on the ground that the testator was senile as to be incapable of understanding the contents of the will. Some of the evidence relied on, was the inconsistent behaviour of the testator prior to making his will. For instance, his performing all pagan rites up to the time of his death and yet requesting a Christian burial in the will.
The court held that inconsistent conduct of an old man was not necessarily evidence of senility. It also held that discrepancies shown in the signature, initials on the will itself and the nature of the scrawls showed that the hand of the old man was shaky. And such discrepancy is not evidence of senility. It is important to note that the testator intended to express his will and having regard to his infirmities, did so well as he could in the present circumstance.
Lack of capacity, is also one of the grounds in which a will can be faulted. The person engaged to prepare the will has the responsibility to ensure that the will is valid in the sense that the testator has the necessary testamentary capacity.

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