What is legal capacity and how do you establish it? It is not always as straight forward as it sounds.
The Supreme Court held in the case of d’Apice v Gutkovich that Irene Abrahams (a deceased person) had capacity to make a Will even though six months prior to her making her last Will the Guardianship Tribunal found she was not capable of managing her affairs!
Generally, legal capacity requires a person to:
- understand the facts involved regarding the decision to be made;
- understand what choices are available;
- be able to evaluate the choices and the likely effect of such choices;
- be able to communicate the decision.
Legal capacity requirements vary in different situations.
For Wills, the basic principles were established in 1870 in the case of Banks v Goodfellow. The case has withstood the test of time.
Its language is descriptive:
A person making a Will must “…understand the nature of the act and its effects; … understand the extent of the property of which he is disposing; … be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural facilities…”