Testamentary capacity defined
Testamentary capacity is the specific ability to make a will. It is not necessary that someone is free from any mental difficulties or deterioration, and it is quite possible that someone may have testamentary capacity but not have capacity to do other things, such as manage their business affairs.
What is required to be established to certify that someone has testamentary capacity was set out in the English case of Banks v Goodfellow3 in 1870. The individual must understand the nature of the making of a will, its effects and the extent of their property and possessions. The person must also be able to appreciate the claims to the estate, which he ought to consider.
The person must also be “free of any disorder of the mind which would poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made”.
It is not necessary that the person “should view his will with the eye of a lawyer, and comprehend its provisions in their legal form” but rather that they have a general understanding of the nature of a will, the extent of property, the state of their family, and those that may have a claim on their estate4.