Lack of testamentary capacity is one of the most frequently relied upon grounds to challenge the validity of a Will. As capacity is task specific and fluid, it is possible to see a testator that has capacity first thing in the morning and for it to be gone by mid-afternoon. It is also not uncommon for a testator to lack capacity in other respects but to retain the capacity necessary to make a Will. For a lawyer drafting a Will for an individual with questionable capacity, this has always been a challenge.

In John Poyser’s book, “Capacity and Undue Influence”, he addresses this difficulty and suggests the practice of the “tear-away will” as a possible solution. The basic premise is that in simplifying and breaking down a more complex Will into a main Will and one or more Codicils, it is more likely to withstand a capacity challenge.

For instance, a lawyer faced with a client in a weakened physical and mental state may have concerns as to whether the client has testamentary capacity. The client may be alert long enough to provide straightforward instructions but it is not clear whether the client has the ability to comprehend a 20-30 page legal document containing more complex gift-over provisions, Estate Trustee fees, and replacement Trustee clauses. If the Will is later challenged, it will almost certainly be difficult to convince the Court that the testator understood all of these provisions in light of their frail condition at the time.

As a result, Poyser suggests having the testator execute a main Will containing only the most important elements such as any specific bequests, residue clauses, and the naming of an Estate Trustee. This document should ideally be less than one page. Then, after a brief rest, if necessary, and when the testator is alert again, a Codicil can be prepared that contains the more complex provisions such as contingent gift-overs and various boiler plate clauses.

In this way, if the Will and Codicils are later challenged on the grounds that the testator lacked testamentary capacity, it will be a much easier task to demonstrate to the Court that the testator had the capacity to understand the most straightforward and basic provisions contained in the Will itself. If any doubt remains, it is likely that it will only be the Codicil(s) that fall due to lack of capacity.

It is always critical for the drafting lawyer to look beyond the immediate task of executing the Will and be cognizant to the issues that may arise following the testator’s death. If there is the possibility of a future capacity challenge, it is prudent to safeguard the Will as best as possible beforehand.

Thank you for reading.

Suzana Popovic-Montag