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Can a sick old man execute a will?

21/05/2017

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Currently I am handling a disputed will case.   The other side is challenging that due to health problems and old age, when the testator executed his will, he did not understood the nature and extent of the properties he was disposing under the will.

It is trite law that for a will to be valid, a testator must have testamentary capacity.  Whether a testator has testamentary capacity depends on the facts of each case.  The testator shall be able to comprehend and appreciate the claims to which he ought to give effect and with a view of the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties.

In deciding upon the capacity of the testator to make his will, one must look into the soundness of the mind and not the particular state of bodily health at the time he executes the will.  He should possess sufficient understanding to direct how his property shall be disposed of.

The onus of proving the above lies on me.  Indeed a challenging case…

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