Difference between revisions of "Making and Executing a Will (16:III)"

Making and Executing a Will (16:III) (view source)

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 The law presumes that a will-maker has the requisite capacity if a will was duly executed in accordance with the formal statutory requirements after being read over to a will-maker who appeared to understand it.
-However, a student or lawyer taking instructions from the will-maker should, nevertheless, always assess the will-maker’s capacity. This decision should be based on the will-maker’s instructions, not any assertion from the will-maker that they are capable. To this end, avoid asking the will-maker direct questions about capacity, such as “are you capable?”
+Nevertheless, a student or lawyer should always assess the will-maker’s capacity when taking instructions from the will-maker. This decision should be based on the will-maker’s instructions, not any assertion from the will-maker that they are capable. To this end, avoid asking the will-maker direct questions about capacity, such as “are you capable?”
 Some helpful lines of inquiry to assess capacity include: whether the will-maker can understand the nature of the testamentary act (that they are making a will), can recall the property, and can comprehend that they are excluding possible claimants under intestacy or through a wills variation claim. Delusions or partial insanity will not destroy testamentary capacity unless they directly affect testamentary capacity or influence the dispositions in the will.
 ==== c) Presumption of Validity ====