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  • Writer's pictureTeam Nellie

The Golden Rule of Testamentary Capacity: An Essential Guide


In the realm of estate planning and wills, the term "testamentary capacity" often comes to the fore. It is a legal standard, aimed at ensuring that a person making a will, also known as the testator, is mentally capable of understanding the implications of their actions. A will made by someone without testamentary capacity can be invalidated, throwing estate distribution into turmoil. The "Golden Rule" of testamentary capacity serves as a safeguard to help ensure that the testator's wishes are honored and that the will stands up to legal scrutiny. In this blog, I, Holly, will discuss what the Golden Rule is, why it is important, and how it is implemented.


What is Testamentary Capacity?


Before diving into the Golden Rule, let's first understand what testamentary capacity actually means. Generally, the testator must:


1. Understand the nature of making a will and its effects.

2. Understand the extent of the property being bequeathed.

3. Be aware of the persons who would naturally have a claim to the testator's estate and consider them when making the will.

4. Not be suffering from any mental disorder that would affect their judgment concerning the distribution of their property.


What is the Golden Rule?


The Golden Rule is a guideline that recommends that a health or social care practitioner, preferably one with experience in assessing mental capacity, examine the testator to confirm their testamentary capacity. This is especially advised in situations where:


1. The testator is of advanced age.

2. There are apparent signs of mental deterioration.

3. The will makes unusual or unexpected provisions that might raise questions about the testator’s mental capacity.


Why is the Golden Rule Important?


Legal Safeguard


Having a medical practitioner's confirmation can serve as a significant legal safeguard. If the will is contested on the grounds of lack of testamentary capacity, this medical evidence can be pivotal in upholding the will.


Protects the Testator's Wishes


By following the Golden Rule, you ensure that the testator's wishes are accurately reflected, free from the cloud of incapacity.


Family Harmony


A will that survives legal challenges is less likely to cause familial discord. The Golden Rule helps in preserving family harmony by minimizing the chances of a successful legal challenge that could otherwise tear families apart.


Implementing the Golden Rule


Timing


The capacity assessment should ideally coincide with the time of making the will, or as close as possible to that time.


Choice of Practitioner


Choose a practitioner experienced in assessing mental capacity. The professioanl should be aware of the four key elements that constitute testamentary capacity.


Documentation


It's crucial for the practitioner to provide a written report, which should be preserved along with the will.


Conclusion


The Golden Rule of testamentary capacity is not a legal requirement but rather a strong recommendation, particularly in situations where the testator’s mental capacity could be in question. By adhering to this rule, you not only protect the integrity of the will but also mitigate potential family discord that might arise from contested wills. In the complex landscape of estate planning, following the Golden Rule is akin to buying an insurance policy for your will, one that pays off by ensuring peace of mind and legal fortitude.



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