Disqualified Witnesses

Can a minor be a witness to an oral will? No!

Can someone lacking legal capacity be a witness to an oral will? No!

Can a will be upheld if there were faults concerning the capacity of the witnesses? Yes, if the court has no doubt about the genuineness of the will and that it reflects the testator's wishes and was made freely.

Can a person who is mentally ill person and whose legal capacity was taken away by court, become a valid witness if he has recovered from the illness? Not unless there is a court declaration cancelling his lack of legal capacity, in which case he will be entitled to become a witness.

Can a person be declared to lack legal capacity during estate proceedings, where he is a witness , on the grounds that he is mentally ill – before this has been done so officially in special proceedings? No! A person can only be declared as lacking legal capacity during guardianship proceedings. A mentally ill witness who has not been declared as lacking legal capacity can be a witness, and his evidence can be submitted to court, although it is possible that it will carry little weight.

What is the relevant point for establishing whether a witness to a will has legal capacity, or is disqualified? The point when he actually was used as a witness in practice – e.g. as a witness to an oral will, or a written one.

Does the declaration of a witness as lacking legal capacity when probate is granted, disqualify evidence he gave previously? No! Testimony he gave before he was declared lacking legal capacity will be valid.