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Testamentary capacity 

Testamentary capacity
Testamentary capacity

Robin Jacoby

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date: 24 September 2021

In most Anglophone jurisdictions the mental capacity to make a Will is governed by the Banks v Goodfellow judgment of 1870. This requires a testator to know what a Will is, the extent of his estate, and who might expect to benefit from his bounty. No mental disorder may affect the disposition of his estate. Older people, especially those with dementia and delirium, are liable to change their Wills under the influence or abuse of others, which leads to acrimonious family disputes. Old age psychiatrists are increasingly called upon to assess the capacity of people about to make Wills, as well as retrospective assessments of the capacity of deceased persons whose Wills are challenged in the courts.

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