What is a Testator?

INTRODUCTION

The term "Testator" is central to the realm of estate planning.

The following article lays out who can be a Testator, the legal requirements the Testator must meet, and the importance of the concept of "testamentary capacity" in ensuring the validity of the Testator's Will.

Understanding these central aspects around the role of the Testator is critical when drawing up a Will, whether you decide to draw up the Will yourself or with the help of professionals like Squiggle to guide you through the process. 

DEFINITION OF TESTATOR

A Testator is the legal term for the individual who makes a Will.

Sometimes, a female testator is referred to as a Testatrix.

AGE REQUIREMENTS

For the Will to be valid, the Testator must be 18 or over when signing it.

If the Testator is in the armed forces and/or in active military service, the Testator can be accorded a special privilege whereby the Testator can be under the age of 18.

TESTAMENTARY CAPACITY

Criteria for Mental Capacity

If it is deemed that the Testator does not have the required mental capacity at the time of writing or altering the Will, then the Will can be considered invalid.

The test for capacity to execute a Will is based on case law, and a Testator must:

• Understand the nature of making a Will and its effects.

• Understand the extent of the property of which they are disposing.

• Comprehend and appreciate the claims to which they ought to give effect.

• Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property through a Will.

Potential Uncertainties in Testamentary Capacity

The term "mental capacity" has been challenged in the past, and family disputes have hinged on testamentary capacity.

But remember that making (or defending) such a challenge can turn out to be quite expensive in terms of legal fees. So it's vital you fully understand the intricacies of any such challenge (or defence) like this.

If you're under any doubt whatsoever that the Testator has the testamentary capacity to draw up a Will, you may wish to consult a medical practitioner to carry out an examination on the Testator at the time and date the Will is about to be signed.

If at any time you're not sure, please feel free to reach out to us, and we'll put you in contact with one of our specialist lawyers.

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