/ Is Mental Capacity Tested When Writing A Will?

It was way back in the Victorian era when most of the rules pertaining to writing a will were introduced. It was at this time that will writing became more regulated, and wills were granted a legal status; before then they were more of a guide as to how things should be distributed after a death.

Therefore it was no surprise when the Law Commissionundertook a review to determine whether any of the laws needed to be updated inline with the 21st century. It was thought that one of the reasons why so many people don’t write wills is because the rules around them seem old fashioned and out of place.

Although it was concluded that many of the rules did not need to be changed, the one that did seem to cause concern was the one revolving around mental capacity. The term was created in an era when the understanding of mental illness was very new – after all, this is when people would go to gawp at inmates of Bedlam mental institute. Illnesses such as dementia were not even considered. Today, someone with dementia is immediately said not to have the mental capacity to write their own will, but this is due to the Victorian determination; in fact, those suffering can have good and bad days, and this means that they may understand entirely what they are doing when they write their will. In the early stages dementia is about loss of short term memory more than anything else, so of course the sufferer would be able to write their will with no problems. The law, however, prevents them from writing a valid will if they have been diagnosed, probate for that person’s estate would then be dealt with under a letter of administration

Times have changed dramatically, and in this modern world it should be quick and easy to create a will that will be valid and lay out all the testator’s wishes. Electronic wills – something that the Law Commission is recommending become commonplace – will certainly help with this, but updated laws regarding medical issues that we now have a much better understanding off will be a great step forward.

Location: Braintree, UK

Is Mental Capacity Tested When Writing A Will?
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