Mrs B is a 75-year-old patient at Dr M’s practice. Mrs B has a history of Type 2 diabetes and hypertension and Dr M has known her for many years. Mrs B’s daughter has voiced some concern about her being rather forgetful lately. Until last year, Mrs B lived alone and managed well but is currently living with her daughter. Mrs B makes an appointment to see Dr M in relation to her testamentary capacity as she is in the process of making a will. What issues should Dr M consider covering with her?
The law in Ireland in relation to testamentary capacity is very similar to English law on the subject. Under the Succession Act (1965) “the person making the will must be of sound disposing mind”.
It is important to remember that testamentary capacity is not the same as ordinary capacity, as a person requires a high level of mental function to be in a position to make a will. Testamentary capacity is not easy to define and each patient should be reviewed individually by the GP, if so requested, and contemporaneous notes kept.
Under a leading English case1, a law which has been approved in the Irish courts, the judge set out the following principles in relation to testamentary capacity:
- The testatrix must understand that she is executing a will.
- She must know the nature and the extent of her estate. She must be able to call to mind persons who might be expected to benefit from her estate and decide whether or not to benefit such a person.