A checklist for capacity to make a valid will

Every now and then, a client appears in chambers wanting with instructions that a will be drafted for him. Quite a number of induviduals have considered the need to make a will and wondered whether they had the capacity to make one. For the benefit of lay persons, it is important to state at the outset that being not having property at present does not mean that you cannot make a will bequithing the same. This is especially relevant where one expects certain property to transfer to his/her name in future.

The following is a brief discussion of the issues that a counsel or a person making a will should put in consideration to avoid invalidation of an otherwise valid will on basis of lack of capacity of the maker. In essence, they are also the issues that a lawyer must satisfy himself of before getting a client to execute a will besides formality issues.

1.Capacity
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The Law of Succession Act, Cap 160, Laws of Kenya, (hereinafter the “Act”) provides that any person who is of sound mind and not a minor may dispose of all or any of his free property by will and may thereby make any disposition by reference to any secular or religious law that he chooses (Section 5(1) of the Act).

2.Age
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An infant is incapable of making a valid will. Any will made during infancy is invalid even when the minor reaches the age of majority. The minor upon reaching the age of majority can validate the infancy will by:

(i) re-executing the will or;
(ii) preparing a codicil confirming the will.

3.Testamentary Capacity
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As per Section 5(3) of the Act, any person making or purporting to make a will shall be deemed to be of sound mind unless he is at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing.

In Vaghella –vs– Vaghella [1999] 2EA 351, the court stated that the validity of a will derives from the testamentary capacity of the testator and from the circumstances attending its making.

A will made by a person during period of mental unsoundness of mind is invalid. Mental capacity is not directly linked to mental disorder or madness but it refers to the testator’s capacity to understand the nature of what they are doing.

The test of mental capacity to make a will as set by Cockburn C.J. in Banks –vs– Goodfellow (1870) LR 5 QB 549 requires that testator must have:

(i) Sound mind enabling him to understand the nature of the act of making a will and its effects. He must understand what he is doing, not of low mentality or is under the influence of drink or drugs. The testator’s mind must not be prey to insane delusions perverting his moral sense thus interfering with his reason and judgment in the way he disposes his property. This point was also address in Re Nightingale [ 1974] 119 Sol Jo 189

(ii) Sound memory enabling him to have a recollection of the property of which he is disposing. It is not the degree of memory possessed by the testator but he ought to be able to recollect the property he is about to bequeath, the manner of distributing it and the objects of his bounty.

(iii) A sound understanding. He should be able to remember the persons he is morally to provide for, having regard to their relationship to him.

4.Insane Delusions
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A person suffers from insane delusions if he holds belief of a particular matter which no rational person can hold and the belief cannot be eradicated from his mind by reasoning with him.

Insane delusions were defined in Dew –vs– Clark (1826) 3 add 79 where the testator had made a prima facie valid will but in which he excluded his daughter because he had an insane aversion to her. The will was declared invalid.

Insane delusions will only affect the person’s capacity to make a Will if it affects the way he disposes of his property. The effect of this is to invalidate the will. If it affects the whole will, then the entire will is invalidated and if it affects part only the affected part is invalidated.

In the Banks –vs– Goodfellow (Supra), the testator believed that evil spirits and a person who was already dead were pursuing him. The court found that although the testator suffered from insane delusion the same did not affect his testamentary capacity as the delusions did not affect the way in which he disposed off his property by will.

CONCLUSION
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For a will to take effect as a valid testamentary disposition, it must be proved that: the testator had capacity at the time of executing the will, the formal requirements were complied with and whether the document alleged to be a will was revoked by the testator before his death.
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This article is an adaptation of a section of group work we did with a couple of my friends from whom I was not able to obtain permission to acknowledge by name.