Capacity to Make a Will: Essential Criteria for a Strong and Valid Testament

Introduction

A will is a legal document that outlines an individual’s wishes regarding the distribution of their assets and the management of their estate after death. It is an essential part of estate planning, ensuring that beneficiaries receive the deceased’s property according to their intentions.

However, for a will to be valid and enforceable, the testator (the person making the will) must have the legal capacity to create it. The issue of testamentary capacity is fundamental in probate law, as disputes often arise when beneficiaries challenge the validity of a will on the grounds that the testator lacked mental competence, was coerced, or was unduly influenced.

This article explores the essential criteria for a valid will, the legal standards for testamentary capacity, factors that could undermine capacity, and steps to ensure that a will is legally sound and enforceable.

Legal Framework Governing the Capacity to Make a Will

The capacity to make a will is primarily determined by law. Different legal systems have their own requirements, but there are universal principles governing the capacity to create a valid will.

In Nigeria, the primary laws regulating wills and testamentary capacity include:

1. The Wills Act of 1837 (Applicable in Southern Nigeria) – This law provides the general guidelines for making a valid will.
2. The Wills Law of Various States – Some Nigerian states have enacted specific Wills Laws that modify or expand the provisions of the Wills Act.
3. Customary and Islamic Law – In cases involving indigenous communities or Muslims, local customs and Sharia law may govern the validity of wills.
4. Judicial Precedents – Court rulings on disputes over wills also shape the interpretation of testamentary capacity.

These legal instruments define the conditions under which a will is valid, enforceable, and free from legal challenges.

Essential Criteria for Testamentary Capacity

For a will to be legally valid, the testator must satisfy certain fundamental conditions to demonstrate that they have the legal and mental capacity to create a testamentary document.

1. The Testator Must Be of Legal Age

A person making a will must have attained the legal age set by law. Under the Wills Act of 1837, the minimum legal age to make a will is 18 years. However, there are exceptions:

• Members of the armed forces and mariners can make a will at a younger age, especially when facing imminent danger.
• Under Islamic law and customary law, the age of testamentary capacity may be influenced by cultural and religious considerations.

A will made by a person below the legal age (except under recognized exceptions) is void and will not be upheld by the courts.

2. The Testator Must Be of Sound Mind (Mental Capacity)

One of the most critical factors in determining the validity of a will is whether the testator was of sound mind at the time of making it. Testamentary capacity is assessed based on the Banks v. Goodfellow (1870) LR 5 QB 549 case, which established the standard for mental competence in making a will.

For a testator to be considered of sound mind, they must:

• Understand the Nature of a Will: The testator must know that they are making a will and that it will take effect only after their death.
• Understand the Extent of Their Property: The testator must be aware of the value and nature of the assets they are distributing.
• Know the Beneficiaries and Their Entitlements: The testator must recognize their natural heirs, including children, spouses, and dependents, and understand how their assets are distributed among them.
• Make Decisions Without Delusion or Hallucination: If the testator suffers from mental illness that distorts their judgment, the will may be invalid.

Any evidence of dementia, senility, Alzheimer’s disease, or other cognitive impairments can be used to challenge a will on grounds of lack of capacity.

3. The Will Must Be Made Voluntarily (Free from Undue Influence and Coercion)

A valid will must be made voluntarily, without undue influence, coercion, or duress.

Undue influence occurs when an individual pressures, manipulates, or forces the testator to make decisions against their free will. This can happen through:

• Family members exerting pressure on the testator to change their will.
• Caregivers influencing the testator to include them in the will.
• Legal or financial advisors manipulating the testator into making certain decisions.

Courts may declare a will invalid if there is evidence that it was executed under intimidation, fraud, or undue influence.

4. The Will Must Follow Legal Formalities

A will must comply with all legal formalities prescribed under the Wills Act or applicable laws to be valid. These include:

• It must be in writing.
• The testator must sign the will.
• There must be at least two competent witnesses.
• The witnesses must sign the will in the presence of the testator.

Failure to meet these requirements may render the will void or unenforceable.

Factors That Can Undermine the Capacity to Make a Will

Even if a testator initially meets the criteria for making a will, certain factors can arise that invalidate the will:

1. Mental Illness and Cognitive Decline

If a testator suffers from a mental illness that affects their ability to understand or reason logically, their testamentary capacity may be questioned.

2. Substance Abuse

Alcohol or drug dependency that impairs judgment at the time of making the will may be grounds for challenging its validity.

3. Physical Weakness Leading to Dependence

A sick or physically weak testator who is entirely dependent on another person may be susceptible to undue influence.

4. Forgery or Fraud

A will that is forged or fraudulently altered by another person is automatically invalid.

Steps to Ensure a Will Is Legally Valid and Enforceable

To create a strong and valid testament, the following best practices should be observed:

1. Seek Legal Guidance from an Estate Lawyer

Engaging an experienced estate lawyer ensures that the will complies with all legal requirements.

2. Conduct a Mental Competency Evaluation

For elderly testators, obtaining a medical certificate confirming their mental fitness can prevent challenges to the will.

3. Avoid Rushed or Suspicious Changes

Making sudden, last-minute alterations to a will may lead to disputes among beneficiaries.

4. Ensure Witnesses Are Credible and Impartial

Selecting neutral, independent witnesses helps to validate the will’s authenticity.

5. Store the Will in a Safe and Accessible Location

A will should be kept in a safe place where it can be retrieved upon the testator’s death. This includes:

• Registering the will at the probate registry.
• Storing it with a trusted lawyer.
• Keeping a sealed copy with a reliable executor.

Legal Remedies When a Will Is Contested

If a will is contested in court, the following legal remedies may apply:

1. The court may conduct a hearing to determine the mental competence of the testator at the time of making the will.
2. A forensic handwriting expert may be consulted to verify the authenticity of the testator’s signature.
3. If undue influence is proven, the court may invalidate the affected portions of the will.
4. If a will is declared void, the estate will be distributed according to intestacy laws.

Conclusion

A valid and enforceable will ensures that a testator’s wishes are honored and reduces conflicts among heirs. To achieve this, the testator must:

✅ Be of legal age.
✅ Have sound mental capacity.
✅ Make the will voluntarily.
✅ Follow all legal formalities.

Contact Us

At Chaman Law Firm, we specialize in estate planning, probate law, and will drafting. If you need assistance in preparing a legally sound will, contact us today.

📞Phone: 08065553671, 08096888818

✉ Email: chamanlawfirm@gmail.com

📍 Address: 115, Obafemi Awolowo Way, Allen Junction, Ikeja, Lagos, Nigeria

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