📚 PASS Investment Adviser (Level 2) Difficulty: Beginner ℹ️ Info   ~5 min read
📌 Chapter 15.2 — Concept of Wills

Imagine you are advising a high-net-worth client who intends to revise his Will following a significant liquidity event, such as a major exit from a family business. During your meeting, the client appears lucid, yet you notice he mentions a brief hospitalization last month for a neurological condition that occasionally impairs cognitive function.

As an advisor, your task is not to provide a medical diagnosis, but to understand whether the client’s current state meets the legal threshold of ’testamentary capacity’ to ensure the document survives potential future challenges. In the eyes of the law, a sound mind is not a permanent, monolithic state but a functional capacity that exists at the precise moment of execution.

Under the Indian Succession Act, a testator must be capable of understanding the nature of the act they are performing, the extent of the property they are disposing of, and the claims of those who might naturally expect to benefit. This does not mean the individual must have perfect memory or complete mental agility; rather, it requires that they appreciate the ‘what’ and the ‘who’ of their estate.

If a person suffers from intermittent periods of mental instability, they can still draft a valid Will, provided it is executed during a ’lucid interval’—a period of clear, rational thought where they fully comprehend their actions.

In practical wealth management, failure to properly document this capacity can lead to the ‘undue influence’ or ’lack of capacity’ claims that frequently derail estate distributions. For example, if a client with a history of dementia executes a Will without medical verification during a perceived calm period, disgruntled heirs may later challenge the document in court. As professionals, we mitigate this risk by encouraging clients to obtain a medical certificate from their attending physician on the day of registration.

This simple addition adds a layer of objective verification to the subjective intent, securing the client’s legacy against litigation.

This principle of testamentary capacity fundamentally dictates how we approach estate planning as an asset management exercise. When a client’s cognitive health is in question, the advisor must pivot from passive documentation to proactive verification. By ensuring that the legal formalities—such as having independent witnesses who can testify to the testator’s coherence—are met, we protect the structural integrity of the entire estate plan.

If we ignore these nuances, we risk leaving our clients with a ‘recommendation’ that is legally unenforceable, rendering even the most sophisticated tax and trust planning entirely moot.

Nuance

⚠️ Nuance
Candidates often confuse ‘unsound mind’ with a formal medical diagnosis like Alzheimer’s or schizophrenia. The legal test is not clinical; it is functional. A client may be under psychiatric care yet still possess the specific capacity to understand the distribution of their assets, while another with no diagnosis might fail the test due to severe medication side effects. Always focus on the testator’s capacity at the moment of execution, not their medical history in general.

Check Your Understanding

Practice Question 1

Mr. Sharma, who has been treated for episodic clinical depression, decides to draft a Will. During a period where he is coherent, rational, and fully understands his asset base and legal heirs, he signs the document in the presence of two witnesses. Which of the following is true regarding the validity of this Will?

Practice Question 2

For a Will to be legally enforceable, the testator must possess ’testamentary capacity’. Which of the following components is essential to prove this capacity?

This is a companion read for Section 15.2 — Concept of Wills from PASS Investment Adviser (Level 2) by Akhilesh Gururani, available on Amazon Kindle.

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