Assessing Capacity for Lifetime and Testamentary Dispositions

Abstract

In recent years, there has been an increase of litigations on mental capacity in making wills and lifetime dispositions, because people have more complex fam- ily structures and live longer to reach an age when there is a greater statistical risk of dementia. Currently, the capacity tests vary depending on the type and complexity of the transaction in question. This article argues that the size and complexity of a transaction tell us only in which direction these criteria correlate with the requisite level of capacity and not what level is actually set. The req- uisite information required in individual cases should also take into account the underlying interests in the cases. Doing so ensures that similar cases are treated alike and the law of capacity assessment develops in a coherent manner.