Testamentary capacity from ks Narayan Reddy textbook of forensic medicine

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Testamentary Capacity

The Essentials of Forensic Medicine and Toxicology, 36th Edition - KS Narayan Reddy

Definition

Testamentary capacity (testament = will) is the mental ability of a person to make a valid will. "Will" denotes any testamentary document - BNS 2/34 (S.31, IPC).

Requirements for a Valid Will

A will is legally valid only when ALL of the following conditions are met:

A written document, properly signed and witnessed, must exist
The testator must be a major (adult) at the time of making the will
The testator must be of sound disposing mind (compos mentis) at the time of making the will
Force, undue influence, or dishonest representation of facts should not have been applied by others

A sound disposing mind is a mind that has the capacity of recollecting, judging, and feeling the relations, connections, and obligations of his family and blood relations.

A holograph will is one written entirely by the testator in his own handwriting.

Medical Examination of a Testator

Doctors are sometimes called upon to witness the execution of a will of a sick person. The doctor should conduct:

Physical examination
Mental state examination (including intelligence testing)
Laboratory investigations

The testator is said to be of sound mind if he is capable of disposing of his property with understanding and reason.

Recommended Tests (5 Steps)

Ask preliminary questions - about relatives (their number and degree of social contact), opinions on family/friends/business partners, age, politics, and hobbies
Ask general questions for testing awareness regarding time, place, etc.
Ask about the nature, extent, and value of his properties, and the manner of distribution desired. If any unusual or unjust distribution is planned, determine if it is intentional, the reasons for it, and whether he can repeat the main provisions of the will
Test powers of concentration by simple arithmetic, etc.
Ask all other persons to leave the room, then ask the patient whether there was any pressure or undue influence from anyone

What to Exclude

The doctor should exclude any of the following that would impair a sound disposing mind:

Disease or infirmity
Pain or strain
Influence of drugs or drink
Insane delusions

Key point: Drugs or their withdrawal may cause changes in consciousness, reasoning ability, perception of reality, and memory, thereby affecting testamentary capacity.

The most common symptom of absence of legal capacity is impairment of memory.

Note: Prejudices, dislikes, and hatred - however ill-founded or strongly entertained - cannot be classed as due to mental illness/delusions. Dislike of one's relatives without reason is not necessarily proof of want of capacity.

The most important thing to determine is whether, at the time of making the will, the testator:

Understood the business in which he was engaged, and
Knew how he wanted to dispose of his property

Valid Wills (Despite Apparent Incapacity)

The following persons CAN still make a valid will:

Condition	Validity
Person with delusions due to unsoundness of mind	Valid, if the delusion is NOT related to the disposal of property or persons affected by the will
Persons in a lucid interval	Valid
Testator who committed suicide shortly after	Valid, if there is no other evidence of mental disorder
Persons of extreme age and feeble health with defective memory	Valid, unless the mind is so impaired they cannot understand its nature and consequences
Person with motor/sensory aphasia, agraphia, alexia, or who is deaf, dumb, or blind	Valid, if they know what they are doing, can make clear by gestures that they wish to make a will, and can understand questions put to them
Eccentric person	Valid, if there is no other mental derangement or delusion

Invalid Wills

The following circumstances may invalidate a will:

Wills made in extremis (at the point of death) - regarded with suspicion because a clear mind is unusual at that time
A will executed by a dying person during delirium - invalid
Partial drunkenness does not invalidate a will, but when drunkenness causes a temporary loss of reasoning powers, the person cannot make a valid will
An executor is appointed under the will by the testator to carry out the terms after his death (note: executor's appointment under an invalid will would be void)

Source: The Essentials of Forensic Medicine and Toxicology, 36th Edition (KS Narayan Reddy), Chapter on Civil Responsibility - Mental Illness and Testamentary Capacity

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