TESTAMENTARY CAPACITY
A medical practitioner may be called upon to give evidence as to the capacity of a testator to make a valid will. An ordinary person witnessing a will does so to fact only, but if a medical man do so it implies that he was of the opinion that the testator was fit to make a will and of a sound and disposing mind. In making an examination of a person for fitness to make a will, the medical man must endeavour to find out if the testator understands the nature of his action, and all the details associated with it; also if he knows the nature and amount of his property, and the claims or otherwise of those who may become beneficiaries under it. Further, has he such a delusion as may influence his will in disposing of his property, and bring about a disposal of it which, if the mind had been sound, would not have been made.
A person may have a delusion or delusions without interfering with the making of a will. If the “disposing mind” be left intact, testamentary capacity is upheld. In severe illness and old age the mind may be so disturbed, without true insanity being present, that a person is rendered incapable of making a will. In all such cases the medical man should be sure of his ground before granting, if requested, that the patient is capable or otherwise. It is a good plan, when examining a patient as to testamentary capacity, to have the will produced, and privately read it out to the person and ask if it be correct, then to have the person repeat the dispositions of the will, and see if they coincide with the contents of the document.
People who are aphasic may make wills which are valid. Difficulties arise in cases of sensory aphasia.