Bourne, Jenkins & Mulligan

April 15, 2003
Can a person with diminished mental capacity make a Will?

by Amy MacMillan

The answer depends upon the nature and degree of the diminished mental capacity. Diminished mental capacity does not necessarily equal incapacity, but it can create confusion, increase legal costs, and increase the risk that the wishes of the testator (the person making the Will) may not be followed.

In general, a person needs to be of sound mind, memory and understanding to make a Will. If a Will is contested, a court may look at factors such as whether the testator understood what a Will is, knew what property he or she owned and its approximate value, the existence and identities of the beneficiaries, and whether there were unusual gifts or suspicious circumstances at signing of the Will. In determining capacity, a court considers both medical evidence and the evidence of people who dealt with the testator on a day-to-day basis.

A person suffering from a progressive or variable illness may be considered to have capacity from time to time, when he or she is alert and oriented. The key times for determining capacity are the time the Will instructions are given and the time of signing. The testator must have capacity at one of those times.

Site created and designed by Ink Stain Design