To make a valid will a person must have adequate mental capacity to carry out that act. We lawyers call it testamentary capacity. This requires a person to understand:
- what a will is and what it can do;
- what their assets are;
- who it is appropriate to consider as a beneficiary; and
- to properly consider the claims upon their estate and distribute their assets free of any insane delusion or disorder of the mind.
Unfortunately, many people lack this capacity. This could be from birth, by accident or by illness. Dementia and Alzheimer’s disease commonly deprive people of capacity.
Yet many people with disabilities may have substantial estates. They may have built this up before losing capacity, received a compensation payout or an inheritance.
We have laws of intestacy that distribute the estates of people who do not have a will. This applies to those who simply do not have a will through choice or neglect and those who lack capacity. However, the statutory distribution may favour unworthy people who have abandoned, neglected or abused the intellectually disabled person. Furthermore, those worthy of a legacy may have no entitlement to benefit at all.
So what can the law do to address this problem?
The answer lies in Section 8 Succession Act, 2006, which allows the Supreme Court to authorise a will to be made, altered or revoked for a person without testamentary capacity. The will must be one that is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity.
Please contact our Wills & Estate Team for advice and guidance through this process.