A person making a Jersey Will (the ‘Testator’) must have full testamentary capacity when signing the Will. If the Testator lacks the mental capacity to make it, the Will can be set aside
When is mental capacity assessed?
The Royal Court has held the person making the Jersey Will the Testator must have testamentary capacity at the time the Will was executed, or when the Testator gave instructions for the Will, provided; (i) the Will is prepared in accordance with the Testator’s instructions; and (ii) at the time of execution the Testator is capable of understanding, and does understand, that he is executing a Will for which he has given instructions.
The level of mental capacity required for signing a Will which has been drafted in accordance with the instructions given on a previous occasion is not as high as the level required for giving the instructions. On the latter occasion all that is required is that the Testator knows that he is executing a Will.
What is the test for mental capacity?
The three criteria for assessing mental capacity are:
a) The testator must understand that he is giving his property to one or more objects of his regard.
b) He must understand and recollect the extent of his property.
c) He must also understand the nature and extent of the claims upon him both of those whom he is including in the Will and those whom he is excluding from his Will.
What would the Royal Court consider when deciding mental capacity?
In deciding whether a Testator had testamentary capacity the Royal Court would consider not only the act of giving instructions and signing the Will, but also all relevant matters relating to the health and life of the Testator. For example the Royal Court may look at the testamentary dispositions that the Testator made in order to see whether they represent a departure from what he has previously indicated he wished to do, or are they in some way contrary to the affections which he might be expected to entertain, or the moral duties on him.
You should seek legal advice as soon as possible if you are considering contesting on the grounds of invalid formally. If it is considered that you have prima facie grounds for succeeding then we would discuss with you the question of whether to issue a caveat against the estate. This would prevent the executor from proceeding with administering the estate until the issues that you intend to raise are dealt with. However note that this does not mean, that a testamentary disposition which disappoints those to whom the Testator might be thought to be bound by affection, or owe some duty, such as a spouse or a child, or which favours those who appear to be undeserving is of itself evidence of mental capacity.
What about where someone suffers from a mental illness but has period of lucidity?
Where a person suffers from a mental illness but executes a Jersey Will during one of his periods of lucidity the will is valid.
Who has to prove mental incapacity?
The general principle is that a person is presumed to be sane unless proved otherwise, and that the burden is normally upon the party contesting the Will.
However, where there is clear evidence of mental illness which affects the Testator’s capacity to make a valid Jersey Will, the burden of proof shifts to the party supporting the Will to prove it was made in a lucid interval.
For general advice, assistance or further information on bringing an action against a Jersey Estate to challenge on the grounds of lack of capacity or any issues with Jersey Wills or Probate please do not hesitate to call 630530 or email us on firstname.lastname@example.org