Testamentary Capacity

Testamentary Capacity refers generally to a Will maker’s “sound mind, memory and understanding” when making his/her last Will and Testament.

Often a Death Certificate issued by Births, Deaths and Marriages can list medical disorders in the cause of death section of the certificate. From our experience it is quite common to see a deceased’s cause of death list medical disorders such as Dementia or Cerebrovascular Accident (Stroke). Medical disorders such as Dementia or a Stroke have the possibility to affect a Will maker’s “sound mind, memory and understanding”.

In the case of a Death Certificate listing Dementia or a Cerebrovascular Accident as part of the cause of death, the Death Certificate in itself raises questions of the deceased’s capacity to make a Will. Unless evidence to the contrary is received within a Probate Application, the Registrar of the Supreme Court Registry can issue a requisition (stop) on a Probate application until Testamentary Capacity can be supported.

Whilst the family of a deceased may instinctively know whether or not the deceased’s Testamentary Capacity was questionable at the time the Will was made, the Registrar of the Supreme Court Registry simply requests documented evidence of the same.

Additional supporting evidence may have to be introduced within a Probate application to overcome questions relating to the deceased’s capacity to make a Will.

Obtaining evidence of Testamentary Capacity to make a Will does not have to an expensive exercise. If you have been quoted a large sum of money from a previous Solicitor to solve a Testamentary Capacity issue relating to a Grant of Probate we encourage you to contact us for a second opinion.

Inheritance Solutions solves Testamentary Capacity issues regularly. Because of our experience in this area we have developed unique solutions which are only available to our clients.