Testamentary capacity : medico-legal implications of vulnerability and coercion

Abstract

Case-law, both from a Maltese and a foreign perspective, reinforces the need for adherence to guidelines and prudence on the part of the notary prior to executing a notarial act. The need to safeguard vulnerable people from the illicit intent of vultures, who endeavor to seize their estate, has always been felt. However nowadays, this need is further highlighted due to Malta’s ageing population and potential cognitive impairment associated with old age; more so, in the light of the difficulty to challenge a will on the basis of a lack of testamentary capacity or coercion, years after the instructions and execution of the act have taken place. Chapter 1 and chapter 3 of this thesis portray legal doctrine pertaining to testamentary capacity and the vices of consent in relation to wills, respectively. Chapter 2 gives an analysis of the salient provisions of the newly enacted Mental Health Act in Malta, and also delves into other concepts that are intrinsically related to mental capacity, namely interdiction, incapacitation and guardianship. Moreover, this thesis addresses the deficiencies inherent in Maltese legislation with regard to the determination of capacity and the protection of vulnerable people form coercive acts. To this effect, the final chapter puts forward a set of safeguards and recommendations, some of which are in the form of proposed legislative enactments and amendments, which cater for the protection of vulnerable people in matters pertaining to notarial acts, with a focus on wills. .