Do persons with cognitive decline, have the legal capacity to execute their Last Will and Testament? It depends on a variety of factors related to their lucidity of thought, clearness of memory and clarity of understanding when setting out their wishes pertaining to their last testamentary dispositions.
In Malaysia, Section 3 of the Wills Act 1959 states that "except as hereinafter provided, every person of sound mind may devise, bequeath or dispose of by his will, executed in manner hereinafter required, all property which he owns or to which he is entitled either at law or in equity at the time of his death notwithstanding that he may have become entitled to the same subsequently to the execution of the will.”
Someone may be incapable of having the capacity to enter into contractual and/or commercial legal arrangements, however they may legally have the capacity to make testamentary dispositions as a result of lucid intervals in their mind, memory and understanding, throughout a temporary period.
It is during this scintilla temporis of mind, memory and understanding, that the law and judicial precedent recognise that a Last Will and Testament executed may be valid as long as the Testator or Testatrix is fully oriented and in control of their faculties during that period, whereby they are capable of understanding the nature of their act. A person therefore need not be in perfect health to have their will declared valid.
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