1. What is testamentary capacity?
You must have “testamentary capacity” at the time when you sign your Will. You have testamentary capacity if you understand:
- the nature of your action and its consequences (ie. understand that creation of the will takes effect after your death and what happens after that)
- the extent of the property you will dispose
- the claims your named beneficiaries will have after you die
2. What if I have a chronic disease?
You do not cease to have testamentary capacity just because you suffer from any chronic disease (such as cancer or diabetes) or have imperfect memory. You lose testamentary capacity if your disease or illness causes you to be deficient in your memory (at the time when you make or give instructions to make your Will). For example, Vivien made her Will in 2019 where her entire estate would go to her minor daughter after she dies. Vivien made another Will in 2021 when she was extremely sick. She failed to provide for her minor daughter. In fact, she told one of her relatives that she has a son instead of a daughter. The second Will is likely to be invalid as Vivien did not have the testamentary capacity to sign a Will.
If treatment of the chronic disease requires that you consume medicine or drugs, it may be grounds for a person to challenge your testamentary capacity, and therefore the validity of your Will.
The important take away is this: as a testator, you must be of sound mind, memory and understanding (regardless of your state of health) at the time when you sign your Will. As such, we encourage you to draw up a Will when you are still capable and healthy (without any disease or illness). This reduces the possibility of your Will being challenged by people who for various reasons, want to lay claim to your assets.
If you would like us to customise your Will, we can help. Contact us today!