For a will to be valid, it must meet three criteria in relation to the person making the will:
- They must understand the effect of the will;
- They must understand and recollect the extent of the property which is the subject of the will; and
- They must understand the nature and extent of the claims of those benefiting from and excluded from the will.
In addition, it must be signed at the bottom by the person making it and witnessed by two witnesses who are not beneficiaries under the will.
Many past claims have been made on the basis that the testator was not 'of sound mind' at the time the will was made. It is not uncommon for people with terminal illnesses to wish to make or amend wills. In some cases these people are heavily sedated and this can raise questions as to their fitness to make a valid will.
However, a recent case suggests that it is not necessarily a requirement that the person making the will is of sound mind at the point when they put their signature to the will. The case involved an elderly lady, who had had a will drawn up in accordance with her wishes, but failed to sign it, despite reminders, until two days before she died. She signed it and it was witnessed in hospital, whilst she was under sedation with morphine.
The validity of the will was challenged on the basis of her mental capacity at the time she signed it. Rather surprisingly, the validity of the will was upheld, because the court decided that whilst she would not have been sufficiently mentally aware to make such a will, she would have been aware that the document she was signing was the will she had had drafted in accordance with her earlier instructions.