| Wills, trusts and estates |
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| Part of the common law series |
| Wills |
Sections Property disposition |
| Trusts |
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Governing doctrines |
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In the common law tradition, testamentary capacity is the legal term of art used to describe a person's legal and mental ability to make or alter a valid will. This concept has also been called sound mind and memory or disposing mind and memory.
Adults are presumed to have the ability to make a will. Litigation about testamentary capacity typically revolves around charges that the testator, by virtue of senility, dementia, insanity, or other unsoundness of mind, lacked the mental capacity to make a will. In essence, the doctrine requires those who would challenge a validly executed will to demonstrate that the testator did not know the consequence of their conduct when they executed the will.
Certain people, such as minors, are usually deemed to be conclusively incapable of making a will by the common law; however, minors who serve in the military are conceded the right to make a will by statute in many jurisdictions. In South Africa, however, one acquires testamentary capacity at the age of 16 years.
The requirements for testamentary capacity are minimal. Some courts have held that a person who lacked the capacity to make a contract can nevertheless make a valid will. While the wording of statutes or judicial rulings will vary from one jurisdiction to another, the test generally requires that the testator was aware of:
The legal test implies that a typical claimant in a will contest is a disgruntled heir who believes they should have received a larger share than they did under the will. Once the challenging party meets the burden of proof that the testator did not possess the capacity, the burden subsequently shifts to the party propounding the will to show by clear and convincing evidence that the testator did have the requisite capacity.
Those who contest a will for lack of testamentary capacity must typically show that the decedent suffered from mental unsoundness that left them unable to remember family members or caused them to hold insane delusions about them. [4] Dead Man's Statutes sometimes restrict evidence which can be admitted concerning transactions with the decedent. [5]
Lawyers for people whose testamentary capacity might be called into question often arrange for a will execution to be video taped. On video, they ask the testator about his property and about his family, and go over the contents of the testator's will.
The testamentary capacity matter is most frequently raised posthumously, when an aggrieved heir contests the will entered into probate. For this reason, in the absence of the ability to interview the testator directly, a forensic psychiatrist or forensic psychologist may evaluate a testator’s capacity by reviewing videotape of the drafting of the will, emails or letters, medical records, and other records. [6] Along with resolving an examinee's testamentary capacity, a forensic specialist may observe for signs of undue influence, particularly susceptibility to undue influence.
Even when a testator is found to have lacked testamentary capacity due to senility, loss of memory due to the aging process, infirmity or insanity, courts will sometimes rule that the testator had a "temporary period of lucidity" or a "lucid moment" at the time of the execution of the testamentary instrument. Such finding will validate a will that would otherwise be denied probate.
A way to forestall a will contest would be to have a self-proving will, in which an affidavit of the witnesses to the will specifically swear or affirm that the will was prepared under the supervision of an attorney.
Where a will is rational, professionally drawn, seemingly regular in form and is made by a person whose capacity is not in doubt, there is a presumption that the will is valid. This presumption can be rebutted by a challenger to the will showing that there is a real doubt about capacity. At this point the burden of proving capacity moves to the propounder of the will to then show that there was testamentary capacity at the time the will was executed. [7] [8]
The current test comes from the decision in Banks v Goodfellow (1870). [9] This case concerned the validity of the will of John Banks. In modern terms he would most likely be described as a paranoid schizophrenic. He suffered from delusions that he was being persecuted by devils (they were sometimes visible to him) and also by a deceased local grocer. His will was challenged on the basis that he was insane and therefore unable to make a will. [10] [11] The will was found to be valid after trial by jury, before Brett J, at Cumberland Spring Assizes in 1869. On appeal, this judgment was confirmed unanimously by a panel of four appeal judges in Queen's Bench. The will was found to be valid, not influenced by his delusions, and deemed rational, being in favour of his only close relative (who also lived with him). In his judgment, Cockburn CJ set out a test of the capacity to make a valid will, which is still applied in many Anglophone jurisdictions today. It is now considered as being composed of four distinct elements: (1) understanding the nature of the act of making a will and its effect, (2) understanding the extent of the property that is to be disposed of, (3) understanding the claims of family or friendship to which ought to be given effect [12] and as a separate element, [13] (4) that no mental disorder or delusion shall influence his will in way that would not have occurred otherwise. [12] This remains the test today, notwithstanding the Mental Capacity Act 2005. [14]
In addition, in the original wording, [1], [2] and [3] are all approached as not requiring actual understanding, but instead being capable of understanding. [15] As this is a common law test created by judges, it is capable of being modified by judges, as they see fit in the light of modern circumstances. Modern psychiatric knowledge has allowed the test to be developed by having a further element added and that is for the testator to be capable of exercising his decision-making powers. [16]
This test is focussed on the ability of the particular individual and his particular estate. The outcome is always unique to the particular facts. Where the circumstances and assets of a testator are simple or straightforward the level of capacity required will be lower than that for the testator with complex circumstances and assets. [17] [18] Additionally, this test is expressly designed for the capability of a person to make a will. It is not, therefore, a test that has an application to any other transactions, save one – the capacity to make substantial lifetime gifts. The leading English decision in this area is Re Beaney (deceased). [19] [20]
The test in Banks v Goodfellow has proved to be long lasting as it was not a definition in medical terms, but a plain English definition of what a person should be capable of understanding in order to make a will. The test is still applied by a court. A medical opinion, while being potentially valuable evidence, is not determinative of capacity unless accepted as such by the court. [21] The evidence of the will draftsman has considerable value to the court, [22] if he has carried out his work to an acceptable standard. [23] The will draftsman is required to have knowledge of the legal test of capacity and what its implications are, in order to record his relevant observations of the testator and form an opinion of his client's capacity. This, coupled with much greater prominence of negligence claims against will draftsmen, [24] means that a careful understanding of what the draftsman should be doing becomes vital.
The M'Naghten rule is any variant of the 1840s jury instruction in a criminal case when there is a defence of insanity:
that every man is to be presumed to be sane, and ... that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.
Sanity refers to the soundness, rationality, and health of the human mind, as opposed to insanity. A person is sane if they are rational. In modern society, the term has become exclusively synonymous with compos mentis, in contrast with non compos mentis, or insanity, meaning troubled conscience. A sane mind is nowadays considered healthy both from its analytical - once called rational - and emotional aspects. According to the writer G. K. Chesterton, sanity involves wholeness, whereas insanity implies narrowness and brokenness.
A will or testament is a legal document that expresses a person's (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. For the distribution (devolution) of property not determined by a will, see inheritance and intestacy.
Wills have a lengthy history.
The mental status examination (MSE) is an important part of the clinical assessment process in neurological and psychiatric practice. It is a structured way of observing and describing a patient's psychological functioning at a given point in time, under the domains of appearance, attitude, behavior, mood and affect, speech, thought process, thought content, perception, cognition, insight, and judgment. There are some minor variations in the subdivision of the MSE and the sequence and names of MSE domains.
Estate planning is the process of anticipating and arranging for the management and disposal of a person's estate during the person's life in preparation for a person's future incapacity or death. The planning includes the bequest of assets to heirs, loved ones, and/or charity, and may include minimizing gift, estate, and generation-skipping transfer taxes. Estate planning includes planning for incapacity, reducing or eliminating uncertainties over the administration of a probate, and maximizing the value of the estate by reducing taxes and other expenses. The ultimate goal of estate planning can only be determined by the specific goals of the estate owner, and may be as simple or complex as the owner's wishes and needs directs. Guardians are often designated for minor children and beneficiaries with incapacity.
A holographic will, or olographic testament, is a will and testament which is a holographic document, i.e. it has been entirely handwritten and signed by the testator. Historically, a will had to be signed by witnesses attesting to the validity of the testator's signature and intent, but in many jurisdictions, holographic wills that have not been witnessed are treated equally to witnessed wills and need only to meet minimal requirements in order to be probated:
In the law of evidence, a presumption of a particular fact can be made without the aid of proof in some situations. The invocation of a presumption shifts the burden of proof from one party to the opposing party in a court trial.
A testator is a person who has written and executed a last will and testament that is in effect at the time of their death. It is any "person who makes a will."
A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator or that the will is otherwise invalid. Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety or in part.
Insane delusion is the legal term of art in the common law tradition used to describe a false conception of reality that a testator of a will adheres to against all reason and evidence to the contrary. A will made by a testator suffering from an insane delusion that affects the provisions made in the will may fail in whole or in part. Only the portion of the will caused by the insane delusion fails, including potentially the entire will. Will contests often involve claims that the testator was suffering from an insane delusion.
In criminal law and in the law of tort, recklessness may be defined as the state of mind where a person deliberately and unjustifiably pursues a course of action while consciously disregarding any risks flowing from such action. Recklessness is less culpable than malice, but is more blameworthy than carelessness.
The Hague Convention on the Law Applicable to Trusts and on their Recognition, or Hague Trust Convention is a multilateral treaty developed by the Hague Conference on Private International Law on the Law Applicable to Trusts. It concluded on 1 July 1985, entered into force 1 January 1992, and is as of September 2017 ratified by 14 countries. The Convention uses a harmonised definition of a trust, which is the subject of the convention, and sets Conflict rules for resolving problems in the choice of the applicable law. The key provisions of the Convention are:
In law a settlor is a person who settles property on trust law for the benefit of beneficiaries. In some legal systems, a settlor is also referred to as a trustor, or occasionally, a grantor or donor. Where the trust is a testamentary trust, the settlor is usually referred to as the testator. The settlor may also be the trustee of the trust or a third party may be the trustee. In the common law of England and Wales, it has been held, controversially, that where a trustee declares an intention to transfer trust property to a trust of which he is one of several trustees, that is a valid settlement notwithstanding the property is not vested in the other trustees.
The Wills Act 1837 is an Act of the Parliament of the United Kingdom that confirms the power of every adult to dispose of their real and personal property, whether they are the outright owner or a beneficiary under a trust, by will on their death (s.3). The act extends to all testamentary dispositions or gifts, where "a person makes a disposition of his property to take effect after his decease, and which is in its own nature ambulatory and revocable during his life." As of 2012, much of it remains in force in England and Wales.
The creation of express trusts in English law must involve four elements for the trust to be valid: capacity, certainty, constitution and formality. Capacity refers to the settlor's ability to create a trust in the first place; generally speaking, anyone capable of holding property can create a trust. There are exceptions for statutory bodies and corporations, and minors who usually cannot hold property can, in some circumstances, create trusts. Certainty refers to the three certainties required for a trust to be valid. The trust instrument must show certainty of intention to create a trust, certainty of what the subject matter of the trust is, and certainty of who the beneficiaries are. Where there is uncertainty for whatever reason, the trust will fail, although the courts have developed ways around this. Constitution means that for the trust to be valid, the property must have been transferred from the settlor to the trustees.
In English law, secret trusts are a class of trust defined as an arrangement between a testator and a trustee, made to come into force after death, that aims to benefit a person without having been written in a formal will. The property is given to the trustee in the will, and he would then be expected to pass it on to the real beneficiary. For these to be valid, the person seeking to enforce the trust must prove that the testator intended to form a trust, that this intention was communicated to the trustee, and that the trustee accepted his office. There are two types of secret trust — fully secret and half-secret. A fully secret trust is one with no mention in the will whatsoever. In the case of a half-secret trust, the face of the will names the trustee as trustee, but does not give the trust's terms, including the beneficiary. The most important difference lies in communication of the trust: the terms of a half-secret trust must be communicated to the trustee before the execution of the will, whereas in the case of a fully secret trust the terms may be communicated after the execution of the will, as long as this is before the testator's death.
The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons may have in a deceased's estate. It forms part of private law.
Testate succession exists under the law of succession in South Africa.
Wills, Estates And Succession Act of British Columbia (WESA) is a provincial statute that governs the law of inheritance in British Columbia, Canada. The bill was introduced in Legislative Assembly of British Columbia on September 24, 2009 and received royal assent on October 29, 2009. WESA amalgamated and in some cases replaced five earlier pieces of legislation. These include: Estate Administration Act RSBC 1996, c. 122,Probate Recognition RSBC 1996, c. 376, Wills Act RSBC 1996, c. 489, Wills Variation Act RSBC 1996, c.Law and Equity Act RSBC 1996, c. 253, s. 46, 49, 50 & 51 and Survivorship and Presumption of Death Act RSBC 1996, c. 444. WESA has given the court curative discretion under Part 5, and in Section 60 allows the court to invalidate and supplant testamentary instruments that are deemed by the court defective as regards proper maintenance and support of the will-maker's spouse or children.