Introduction to Personal Testamentary Capacity in Ghana:

In Ghana, the Wills Act, 1971 (Act 360), provides for persons who have the requisite capacity to make a valid will. This note will highlight the grounds under which a person may or may not have the capacity to make a will.

The Two Forms of Testamentary Capacity:

A review of the cases on testamentary capacity reveals that the phrase is understood in two senses:

1. The properties the testator can or has the capacity to dispose of by will.

2. The personal capacity of the testator.

In a previous note, we discussed testamentary capacity in terms of the properties a testator can dispose of by will. In this note, we will discuss personal testamentary capacity.

Meaning of Personal Testamentary Capacity:

Most definitions of testamentary capacity revolve around the personal capacity of the testator. For instance, according to Black’s Law Dictionary, 9th ed., testamentary capacity is:

The mental ability that a person must have to prepare a valid will.

This capacity is often described as the ability to recognize the natural objects of one's bounty, the nature and extent of one's estate, and the fact that one is making a plan to dispose of the estate after death. Traditionally, the phrase "of legal age and sound mind" refers to the testator's capacity. - Also termed disposing capacity;

Also, in the case of Brown v Ansah [1992] 2 GLR 22, testamentary capacity was characterised as follows:

In order that a testator may make a valid will it is essential that he should understand the nature of the act and its effect, should be able to appreciate the claims to which he ought to give effect and should understand the extent of the property of which he is disposing. Accordingly, the intellectual understanding required for testamentary capacity is somewhat different from that required for the valid execution of a deed, since it includes, for example, the appreciation of the claims of possible beneficiaries.

Under section 1(2) and (3) of Act 360, testamentary capacity revolves around the personal capacity of the testator, as it excludes persons suffering from insanity or infirmity of the mind from making a will.

Grounds under which a Person may lack Personal Testamentary Capacity:

The above definitions of personal testamentary capacity unduly focus on the soundness of the mind of the testator. However, personal testamentary capacity extends beyond soundness of mind and includes

1. Age

2. Soundness of mind

3. Blindness

4. Duress and Undue Influence

These grounds are discussed extensively in subsequent notes.