The Importance Of Understanding You Are Making a Will

It is possible for anyone to make a Will as they are over 18 years old and are of sound mind and have the appropriate mental capacity to write a Will. It is very important that the testator is able to understand the nature, it's purpose, and why they are signing it and what it means when it is effective. For a Will to be valid it must be in writing, signed by the testator and clearly outline your intentions to give effect to the Will. It cannot be written on the back or the side of the Will document, and it needs to be signed in the presence of two witnesses who will not to benefit from it's contents.

With regards to mental capacity, there is a fine line as to who is capable of writing a Will and who is not. The definition of having mental capacity in relation to drafting a Will is that it requires you to understand that you are making a Will. You need to know what you legally own and that the Will would distribute your property on your death to those you have named to benefit. As a testator you must also know that there are those who may have claims contesting your Will or an expectation that they will inherit something on your death. Which is why writing a clear and concise Will is extremely important. If there is a dispute later as to the mental capacity of the testator, medical evidence would be required to prove that the testator was not of sound mind or had mental capacity at the time of drafting the Will. However, someone can still write a Will in a nursing home during a time of periodic events of the testator not having mental capacity, therefore it is quite difficult to establish when someone had capacity to write a Will and then they did not.

It is always a good idea to remind any elderly relative that they will need to draft a Will or that their Will is to be updated. However, it is never a good idea to have the main beneficiary draft the Will, even if the witnesses to the signing of the Will are completely independent to the Will and the beneficiary. This is a bad idea because it can be proved that the Will was written whilst the testator was under duress or undue influence.

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