1
00:00:00,000 --> 00:00:03,300
In the common law tradition. 
Testamentary capacity is the 

2
00:00:03,300 --> 00:00:06,300
legal term of art, used to 
describe a person's legal and 

3
00:00:06,300 --> 00:00:08,500
mental ability to make or alter 
a valid. 

4
00:00:08,500 --> 00:00:12,100
Will this concept has also been 
called sound mind and memory 

5
00:00:12,100 --> 00:00:15,900
were disposing, mind and memory,
presumption of capacity. 

6
00:00:15,900 --> 00:00:19,000
Adults, are presumed to have the
ability to make a will 

7
00:00:19,000 --> 00:00:22,700
litigation about testamentary 
capacity typically revolves 

8
00:00:22,700 --> 00:00:26,400
around charges that the testator
by virtue of senility, dementia 

9
00:00:26,400 --> 00:00:30,000
insanity or other unsoundness of
Mind, lack the mental. 

10
00:00:30,000 --> 00:00:33,400
Mental capacity to make a will, 
in essence, the doctrine 

11
00:00:33,400 --> 00:00:36,000
requires those who would 
challenge a validly executed 

12
00:00:36,000 --> 00:00:38,400
will to demonstrate that. 
The testator did not know the 

13
00:00:38,400 --> 00:00:41,200
consequence of their conduct, 
when they executed, the will 

14
00:00:41,700 --> 00:00:45,000
certain people such as miners 
are usually deemed to be 

15
00:00:45,000 --> 00:00:48,100
conclusively, incapable of 
making a will by the common law.

16
00:00:48,200 --> 00:00:51,100
However, miners, who serve in 
the military are conceded the 

17
00:00:51,100 --> 00:00:55,000
right to make a will by Statute 
in many jurisdictions in South 

18
00:00:55,000 --> 00:00:57,200
Africa. 
However, one acquires 

19
00:00:57,200 --> 00:01:01,600
testamentary capacity at the age
of 16 years, Ears, requirements,

20
00:01:02,100 --> 00:01:04,500
the requirements for 
testamentary capacity are 

21
00:01:04,500 --> 00:01:06,700
minimal. 
Some courts have held that a 

22
00:01:06,708 --> 00:01:09,300
person who lacks the capacity to
make a contract. 

23
00:01:09,300 --> 00:01:12,300
Can nevertheless make a valid. 
Well, while the wording of 

24
00:01:12,300 --> 00:01:15,400
statutes or judicial rulings 
will vary from one jurisdiction 

25
00:01:15,400 --> 00:01:18,700
to another the test generally 
requires that the testator was 

26
00:01:18,700 --> 00:01:22,100
aware of the extent and value of
their property. 

27
00:01:22,600 --> 00:01:25,000
The persons who are the natural 
beneficiaries. 

28
00:01:25,700 --> 00:01:29,400
The disposition they are making 
How these elements relate to 

29
00:01:29,400 --> 00:01:32,600
form an orderly plan of 
distribution of property, the 

30
00:01:32,600 --> 00:01:35,200
legal test, implies that, a 
typical claimant in a will 

31
00:01:35,200 --> 00:01:37,400
contest is a disgruntled are who
believes. 

32
00:01:37,400 --> 00:01:39,700
They should have received a 
larger share than they did under

33
00:01:39,700 --> 00:01:42,200
the will. 
Once the challenging party 

34
00:01:42,200 --> 00:01:44,900
meets, the burden of proof that 
the testator did not possess the

35
00:01:44,900 --> 00:01:47,900
capacity, the burden, 
subsequently shifts to the party

36
00:01:47,900 --> 00:01:50,400
propounding, the will to show by
clear and convincing evidence 

37
00:01:50,400 --> 00:01:54,200
that the testator did have the 
requisite capacity, proof of 

38
00:01:54,200 --> 00:01:57,900
testamentary capacity, those who
contestable for lack of of 

39
00:01:57,900 --> 00:02:00,800
testamentary capacity must 
typically show that the decedent

40
00:02:00,800 --> 00:02:03,500
suffered from mental unsoundness
that left them unable to 

41
00:02:03,500 --> 00:02:06,100
remember, family members or 
cause them to hold insane 

42
00:02:06,100 --> 00:02:08,900
delusions about them dead man 
statutes. 

43
00:02:08,900 --> 00:02:11,800
Sometimes restrict evidence 
which can be admitted concerning

44
00:02:11,800 --> 00:02:15,500
transactions with the decedent. 
Lawyers for people whose 

45
00:02:15,500 --> 00:02:18,200
testamentary capacity might be 
called into question. 

46
00:02:18,200 --> 00:02:21,800
Often arranged for a will 
execution to be videotaped on 

47
00:02:21,800 --> 00:02:23,900
video. 
They asked the testator about 

48
00:02:23,900 --> 00:02:27,300
his property in about his family
and go over the contents of the 

49
00:02:27,300 --> 00:02:29,500
test. 
As well, the testamentary 

50
00:02:29,500 --> 00:02:32,700
capacity matters, most 
frequently raised posthumously 

51
00:02:32,900 --> 00:02:35,800
when an aggrieved are can test. 
The will entered into probate 

52
00:02:36,300 --> 00:02:38,300
for this. 
Reason in the absence of the 

53
00:02:38,300 --> 00:02:41,500
ability to interview the 
testator directly a forensic 

54
00:02:41,500 --> 00:02:44,500
psychiatrist, or forensic 
psychologist, May evaluate a 

55
00:02:44,508 --> 00:02:47,900
testator's capacity by reviewing
video tape of the drafting of 

56
00:02:47,900 --> 00:02:51,200
the will emails or letters 
medical records and other 

57
00:02:51,200 --> 00:02:55,500
records along with resolving an 
examinees testamentary capacity.

58
00:02:55,700 --> 00:02:58,400
A forensic specialist May 
observe for signs of undue 

59
00:02:58,400 --> 00:03:01,300
influence, particularly 
susceptibility to undue 

60
00:03:01,300 --> 00:03:04,100
influence. 
Even when a testator is found to

61
00:03:04,100 --> 00:03:07,500
have lacked testamentary 
capacity due to senility loss of

62
00:03:07,500 --> 00:03:11,600
memory due to the aging process 
infirmity or Insanity Court, 

63
00:03:11,600 --> 00:03:14,500
will sometimes rule that the 
testator had a temporary period 

64
00:03:14,500 --> 00:03:17,900
of Lucidity or Lucid moment at 
the time of the execution of the

65
00:03:17,900 --> 00:03:21,500
testamentary instrument such 
finding will validate a will, 

66
00:03:21,500 --> 00:03:24,800
that would otherwise be denied 
probate a way to forestall a 

67
00:03:24,808 --> 00:03:27,900
will contest, would be to have a
self-proving well in An 

68
00:03:27,900 --> 00:03:30,800
Affidavit of the witnesses to 
the will specifically, swear or 

69
00:03:30,800 --> 00:03:33,200
affirm that the will was 
prepared under the supervision 

70
00:03:33,200 --> 00:03:37,100
of an attorney testamentary 
capacity in England and Wales. 

71
00:03:37,600 --> 00:03:40,900
Where a Willis rational 
professionally drawn, seemingly 

72
00:03:40,900 --> 00:03:44,400
regular inform and is made by a 
person whose capacity is not in 

73
00:03:44,400 --> 00:03:46,000
doubt. 
There's a presumption that the 

74
00:03:46,000 --> 00:03:49,700
will is valid, this presumption 
can be rebutted by a challenger 

75
00:03:49,700 --> 00:03:52,400
to the will showing that there 
is a real doubt about capacity 

76
00:03:52,900 --> 00:03:55,000
at this point. 
The burden of proving capacity 

77
00:03:55,000 --> 00:03:57,400
moves to the per pounder of the 
will to then show that there was

78
00:03:57,400 --> 00:03:59,000
testimony. 
Esta mentary capacity at the 

79
00:03:59,000 --> 00:04:02,200
time, the will was executed the 
current test comes from the 

80
00:04:02,200 --> 00:04:06,800
decision in Banks V, Goodfellow 
1870, this case concerned the 

81
00:04:06,800 --> 00:04:10,300
validity of the will of John 
banks in modern terms, he would 

82
00:04:10,300 --> 00:04:13,300
most likely be described as a 
paranoid schizophrenic. 

83
00:04:13,800 --> 00:04:16,500
He suffered from delusions that 
he was being persecuted by 

84
00:04:16,500 --> 00:04:18,600
Devils. 
They were sometimes visible to 

85
00:04:18,600 --> 00:04:22,900
him and also by deceased local 
grocer, his will was challenged 

86
00:04:22,900 --> 00:04:25,700
on the basis that he was insane.
And therefore unable to make a 

87
00:04:25,700 --> 00:04:27,600
will, the will was found to be 
valid. 

88
00:04:27,900 --> 00:04:31,200
After trial, by jury before, 
Brett J at Cumberland spring 

89
00:04:31,200 --> 00:04:35,800
assizes in 1869 on appeal, this 
judgment was confirmed 

90
00:04:35,800 --> 00:04:37,800
unanimously by a panel of four 
appeal. 

91
00:04:37,800 --> 00:04:41,700
Judges in Queen's bench, the 
will was found to be valid not 

92
00:04:41,700 --> 00:04:45,400
influenced by his delusions and 
deemed rational being in favor 

93
00:04:45,400 --> 00:04:49,300
of his only close relative who 
also lived with him in his 

94
00:04:49,300 --> 00:04:51,900
judgment Coburn. 
CJ set out a test of the 

95
00:04:51,900 --> 00:04:55,200
capacity to make a valid will 
which is still applied in many 

96
00:04:55,200 --> 00:04:58,900
anglophone jurisdictions today. 
It is now considered as being 

97
00:04:58,900 --> 00:05:02,400
composed of four distinct 
elements one, understanding the 

98
00:05:02,400 --> 00:05:05,100
nature of the act of making a 
will and its effect to 

99
00:05:05,100 --> 00:05:08,400
understanding the extent of the 
property that is to be disposed 

100
00:05:08,400 --> 00:05:11,800
of three understanding the 
claims of family or friendship 

101
00:05:11,800 --> 00:05:14,200
to, which ought to be given 
effect in as a separate element 

102
00:05:14,200 --> 00:05:18,500
for, at no, mental disorder, or 
dilution shall influence his 

103
00:05:18,500 --> 00:05:19,700
will and way that would not have
occurred. 

104
00:05:19,700 --> 00:05:24,100
Otherwise this Remains the test 
today notwithstanding the mental

105
00:05:24,100 --> 00:05:28,100
capacity act 2005. 
In addition in the Original 

106
00:05:28,100 --> 00:05:31,200
wording and are all approached 
is not requiring actual 

107
00:05:31,200 --> 00:05:35,400
understanding, but instead being
capable of understanding as this

108
00:05:35,400 --> 00:05:37,700
is a common law test created by 
judges. 

109
00:05:37,800 --> 00:05:41,200
It is capable of being Modified 
by judges as they see fit in the

110
00:05:41,200 --> 00:05:45,300
light of modern circumstances. 
Modern psychiatric knowledge has

111
00:05:45,300 --> 00:05:48,000
allowed the test to be developed
by having a further element 

112
00:05:48,000 --> 00:05:49,800
added in. 
That is for the testator to be 

113
00:05:49,800 --> 00:05:52,700
capable of exercising, his 
decision-making Powers. 

114
00:05:53,200 --> 00:05:55,900
This test is focused on the 
ability of the particular 

115
00:05:55,900 --> 00:05:58,300
individual and his particular 
restate. 

116
00:05:58,600 --> 00:06:02,300
The outcome is always unique to 
the particular facts were the 

117
00:06:02,300 --> 00:06:05,200
circumstances and assets of a 
testator are simple or 

118
00:06:05,200 --> 00:06:07,700
straightforward. 
The level of capacity required 

119
00:06:07,700 --> 00:06:10,100
will be lower than that for the 
testator with complex 

120
00:06:10,100 --> 00:06:13,900
circumstances and assets. 
Additionally, this test is 

121
00:06:13,900 --> 00:06:16,700
expressly designed for the 
capability of a person to make a

122
00:06:16,700 --> 00:06:21,300
will it is not there for a test 
that has an application to any 

123
00:06:21,300 --> 00:06:24,500
other transactions. 
Save one, the capacity to make 

124
00:06:24,500 --> 00:06:28,200
substantial lifetime gifts the 
leading English, Decision in 

125
00:06:28,200 --> 00:06:32,100
this area is rubini deceased the
test and Banks be good. 

126
00:06:32,100 --> 00:06:34,500
Fellow has proved to be 
long-lasting as it was not a 

127
00:06:34,508 --> 00:06:38,100
definition in medical terms but 
a plain English definition of 

128
00:06:38,100 --> 00:06:40,400
what a person should be capable 
of understanding. 

129
00:06:40,400 --> 00:06:44,000
In order to make a will the test
is still applied by a court. 

130
00:06:44,400 --> 00:06:47,200
A medical opinion. 
While being potentially valuable

131
00:06:47,200 --> 00:06:50,800
evidence, is not determinate of 
of capacity unless accepted as 

132
00:06:50,800 --> 00:06:53,300
such by the court. 
The evidence of the will 

133
00:06:53,300 --> 00:06:55,300
draftsman. 
Has considerable value to the 

134
00:06:55,300 --> 00:06:57,300
court. 
If he is carried out his work to

135
00:06:57,300 --> 00:07:00,700
Anna, Acceptable standard, who 
will draftsman is required to 

136
00:07:00,700 --> 00:07:03,400
have knowledge of the legal test
of capacity and what its 

137
00:07:03,400 --> 00:07:07,000
implications are in order to 
record his relevant observations

138
00:07:07,000 --> 00:07:10,200
of the testator and form an 
opinion of his clients capacity.

139
00:07:10,700 --> 00:07:13,900
This coupled with much, greater 
prominence of negligence claims 

140
00:07:13,900 --> 00:07:15,800
against. 
Will draftsman means that a 

141
00:07:15,808 --> 00:07:18,500
careful understanding of what 
the draftsman should be doing 

142
00:07:18,500 --> 00:07:19,300
becomes vital.