Getting Your Head Around Making a Will in Scotland: What’s this ‘Testamentary Capacity’ All About?

Getting Your Head Around Making a Will in Scotland: What’s this ‘Testamentary Capacity’ All About?

Making a Will in Scotland? Generally, it’s simple and straightforward. You just tell your solicitor what you’d like to happen to your stuff when you’re gone. They’ll give you some advice, especially about how Legal Rights might affect your spouse and kids. They prepare a draft; you give it the thumbs up and sign it in the presence of a witness nearby. Voila, you’ve made a valid Will! But hang on a minute – there’s a vital bit that people often forget. You’ve got to be capable of making a Will.

So, what does being capable, or having ‘capacity’, mean when it comes to making a Will?

Well, when you visit your solicitor’s office to make a Will, there are a few things to think about. First, you’ve got to be old enough. In Scotland, that means being at least 12 years old. Not too many folks fail this check, as you can imagine.

The second check is a bit trickier – it’s all about your mental state. You need to be in a clear state of mind for the Will to be legally solid and worth the paper it’s written on.

Do we have some sort of test for this mental capacity?

You know those films where the hero, on their deathbed, says they’re “of sound mind” before writing their will? It’s a bit like that. Being ‘of sound mind’ basically means you have capacity.

There are two types of tests to see if you have the right mental capacity. One is based on common law – the kind based on historical cases. The other comes from the Adults with Incapacity (Scotland) Act 2000.

The common law test comes from an old English case, Banks v Goodfellow, from 1870. The judges decided you must understand what you’re doing and what it means. In addition, you must know what property you’re giving away. And you must understand who might make a claim against your Will. Even if you have a mental illness, as long as it doesn’t stop you doing those things, your Will will still be valid. This test has been used time and time again in Scotland when someone has challenged a Will.

The other test, from the Adults with Incapacity (Scotland) Act 2000, is much more straightforward. You are seen as ‘incapable’ if you can’t act, make decisions, communicate decisions, understand decisions or remember decisions. But if you can’t communicate because of a physical issue which can be fixed through physical assistance or technical equipment, you’re still fine to make a Will.

How do courts see this capacity issue?

Courts take the view you need some solid evidence to question a Will. If your family or friends do not agree with your Will, that is not enough to rule against its contents.

Challenging a Will in Scotland is an undertaking not to be scoffed at. It is extremely difficult to succeed in challenging the validity of a Will. That means it pays to take some solid advice before embarking on an expensive and time-consuming journey akin to tilting at windmills. If you’re thinking about making, changing or challenging a Will, call Stacey Parker today on 01383 629720 or email Stacey by clicking here.

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