Making a Will: Capacity and Intention

Abstract

This chapter discusses the capacity and intention required to make a valid will. To have capacity means that a person is legally competent to make a will. To be competent, the testator must have attained the required minimum age and must possess the necessary level of mental competence. A will is also invalid unless the testator had the intention to make it—he must have the animus testandi when he executes the will. More specifically, the requirement is that the testator must have intended that his wishes—as expressed in the appropriate form—should take effect on his death. It follows that these wishes must be entirely the result of his volition: the testator must know and approve of the contents of his will. Hence animus testandi can be vitiated by factors such as fraud, mistake, undue influence, or failure to understand fully the dispositions in the will.