The perceived need for last minute estate planning often arises when a person is on their deathbed.

Lawyers or trusted advisors are sometimes called to the hospital bedside of a seriously ill patient who wants to make or amend a Will, give an Enduring Power of Attorney, or create a trust over estate assets. When taking instructions of this nature, an advisor must be satisfied that the individual has the requisite mental capacity, to ensure that the documents that he prepares will be valid and take effect as intended.

The level of mental capacity required by an individual varies significantly depending on the act being performed. It has been said that the lowest capacity threshold is required to marry and the highest to make a Will. The capacity to appoint an attorney to act on your behalf, or to settle moveable assets on a trust that you establish, appears to fall somewhere in the middle.

The fact that a person is blind, deaf and dumb or illiterate does not affect that person's ability to make a Will, give an Enduring Power of Attorney or settle a trust.

However special precautions must be taken to ensure such a person has the requisite understanding and these precautions are usually evidenced in the document.

To make a valid Will in Bermuda, the testator must be 18 years or older, mentally competent, and acting of their free will. Generally, a Will will be invalid if the age or capacity requirements are not present or if it can be proven that the Will was made under duress or as a result of undue influence. In determining whether the testator has soundness of mind, memory and understanding and therefore the requisite mental capacity to execute a Will, three criteria must be satisfied.

First, a testator must understand the nature of his act and its broad effects. He must understand that he is expressing his intentions as to the transfer of his property on death, as opposed to a lifetime gift or transfer.

Secondly, a testator must appreciate the extent and value of the property he is capable of disposing, although it is not necessary that he recollect every individual item or its value.

And finally, a testator must understand the possible claims of those he intends to include and exclude from benefit under his Will (such as a spouse, children and grandchildren) even if he decides to reject such claims and dispose of his property to other beneficiaries.

Often, an advisor will arrange for a testator's medical practitioner to examine the individual just prior to, or at the time of, execution of the Will, in order to verify the individual's mental capacity. This medical opinion is usually recorded in writing. Furthermore, the examining practitioner may be asked to witness the Will, thereby attesting to the capacity of the testator.

Where a Will has been duly executed, reads sensibly and appears rational, there is a presumption that the testator had the requisite mental capacity at the time he executed the Will.

However, if the testator's testamentary capacity is challenged and the Will held to be invalid, it cannot be admitted to probate and its provisions will have no effect. The burden of proving that the testator had the requisite mental capacity when he executed the Will falls on the person asserting that the Will is valid.

It is presumed that an individual who ordinarily lacks testamentary capacity (e.g. through mental illness) cannot make a Will. However, if it can be shown that at the time of execution, the individual had in fact recovered testamentary capacity, whether permanently or temporarily, the Will may be deemed valid. An Enduring Power of Attorney is a document that is usually drafted so that it takes effect only in the event that a person becomes mentally or physically incapacitated and thus unable to properly manage their property and other affairs.

The general rule is that if you can handle your own affairs, then you can confer authority on another to do so. The test for capacity to execute an Enduring Power of Attorney is slightly lower than that required for a Will. As with a Will, however, an advisor will generally seek to obtain a medical opinion of the person's capacity if he has any doubts.

As in the case of a Will, if an Enduring Power of Attorney is executed under duress or undue influence, it will be invalid. It is important to embark on proper estate planning and to consider the execution of valid testamentary and other legal documents, while you have the necessary capacity to do so. It may be too late to change your legal affairs once this capacity isgone.

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Attorney Vanessa Lovell is a member of the Trusts and Financial Structures Team of Appleby Spurling & Kempe. Copies of Ms. Lovell's columns can be obtained on the Appleby Spurling & Kempe web site at www.ask.bm.

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.