While most adults are both competent and cognizant, there are some instances where someone may not be able to make a Will.
For example, if you are unable to understand what is going on around you then you really don’t have the capacity to make a Will. There are many reasons why you may not be able to understand. For example, there may be a mental illness, or you may be on medication that affects your thinking ability, or you may simply be unable to communicate at all. Lawyers refer to this as having a lack of testamentary capacity.
A person has testamentary capacity if they have a sound mind, meaning that you must know that you are making a Will, and know its effect; you understand the nature and extent of the estate; and understand that you are disposing of property and assets.
This is different to having medical incapacity. For example, medical incapacity may be a result of a diagnosis of dementia or Alzheimer's disease. However even with such a diagnosis a person during a time of being lucid may well know and appreciate they are making a Will, and they know its effect, and thus can give instructions to make a Will.
As well as having testamentary capacity a person must (generally) be over the age of 18 to make a Will. There are some exceptions to this. For example, if a person under 18 years of age is getting married, then they can make a Will. The only other time a person under 18 years of age can make Will is by Court order.
Finally, much to the surprise of many people, a person who is an attorney under a Power of Attorney cannot make a Will for the principal, or bestower of the power.
Wills & Estates | Kenny Spring Solicitors
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