While not the most pleasant of thoughts, planning your estate is crucial to protecting your family from legal difficulty after you have passed. Most areas of law are mired in red tape, and pages after pages of requirements to ensure validity and enforceability. Because of the potential complications, it is advisable to act sooner rather than later. An improperly arranged or deficient will, can further trouble your loved ones in their time of grief.

The criteria considered by the courts in determining the validity of a will, were updated in the case of Laszlo v. Lawton (2013). An essential element of a valid will is sound mental capacity. You, as the testator of your will must understand the following, of your own mind, free and clear of any and all outside influences:

  1. The nature and extent of all your property;
  2. You must know who your beneficiaries are, and understand what claims they have or could have to your property;
  3. You must understand the provisions of your will, and what is to happen with your assets, and
  4. There must not be any doubt as to your mental capacity. Essentially, deterioration of the mind would bring the validity of the will into question, and allow for an avenue for challenges to the will. Such challenges increase infighting between loved ones, and can be an unnecessary drain on your family and your estate. 

Note, in the case of a challenge to your will, the determination of mental capacity made by the court is made in law, and is not a medical matter. This means that medical evidence is not necessarily conclusive, as the court will consider claims borne of morality, and equity as well as medical evidence.

The team at Sodagar & Company has extensive expertise in estate planning. We understand that such matters can be difficult to consider. However, for the ease of your loved ones, it is always advisable to seek professional advice, and insure your family’s future. You can click here to access our will questionnaire, and familiarise yourself with what information is required for setting your affairs in order.

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