A person must be of sound mind when they make a Will. To satisfy the test of testamentary capacity, the following elements must be present at the time the Will was signed:
- The person must understand what a will is. This means that they must know the exact nature and effect of the document they are making
- The person must appreciate what their property is. For example, what they generally own and are able to leave to beneficiaries
- The person must understand who has a reasonable claim on their property, for example, family members
- The person must not suffer from a “disease of the mind” which may prevent him/her from making a rational decision. Some examples of diseases of the mind include dementia, drug induced psychosis or mental illness. This can become complicated where the person has lucid periods, for example in the case of someone who suffers from dementia, where a valid Will may be made before relapsing into a confused state.
If these elements are not present, the person may have a lack of testamentary capacity and the Will may be capable of being challenged.