Testamentary Capacity and Undue Influence
In this article, I will be examining the requirement for testamentary capacity when preparing a Will and how to avoid Undue Influence.
In accordance with Section 42 of the Wills and Probate Act Chap 9:03 one of the formalities associated with the validity of a Will is that an individual must have attained the age of majority i.e. eighteen years in Trinidad and Tobago. Such an individual upon attaining the age of eighteen years would therefore have the testamentary capacity to be able attest or sign a Will provided that:
(a) they have the mental capacity or capability to make the Will;
(b) they know and approve of the contents of the Will;
(c) they are not acting under the coercion or compulsion of another person.
On the other hand , a person under the age of majority would lack the relevant testamentary capacity because they are underaged.
Issues of capacity to make a Will often arises with senior citizens who may have diminished mental abilities due to age or the onset of a mental disease. In instances where an elderly person may be bedridden ,incoherent in speech or particularly forgetful a certificate of fitness from a medical practitioner will be required certifying that the patient either has or doesn’t have the requisite mental capacity for the preparation of a Will. This will reduce the likelihood of the validity of the Will being challenged in the future.
Undue Influence
As a corollary to the question of whether someone has the requisite capacity is the idea of undue influence. An individual making a Will must know the substance of the activity that they are engaging in (i.e. testamentary capacity) and they must not be pressured or coerced in any way to make dispositions in their Will in favour of any particular person.
This lies at the heart of undue influence. Once more, it is a situation that often arises with senior citizens who may be afraid that family members would refuse to care for them if they are excluded from their Will or who may have been threated by family members to make certain dispositions.
A Will can therefore be found to be invalid by the Court if it is challenged and the Court finds sufficient evidence that there was in fact undue influence. Any such activity should be avoided at all costs.
Disclaimer: This article is written for informational purposes only and should not be construed as legal advice or as giving rise to an attorney-client relationship.
If you enjoyed this article, be sure to share it with someone who you think would get something out of it.
Follow me on Medium Colin Denoon and on Twitter @ColinDenoon. Send questions, suggestions, and comments to colin.denoon@gmail.com.
Check out my podcast here:https://thelegalcornerpodcast.buzzsprout.com/