What to do when capacity to make a Will is doubted

When a person makes a Will, they must have testamentary capacity to ensure their Will is valid. Over recent years, we have seen huge percentages of Wills being contested due to doubt over a Testator’s (the person who made the Will) capacity. In this article, we’ve explained what the testamentary capacity requirements are and shared points you need to consider if you have any doubts over an individual’s capacity when they made their Will. 

Why do people typically contest a Will on the grounds of lacking capacity?

We often see Wills and Probate disputes arise after someone discovers that a loved one’s last Will doesn’t reflect what they expected it to – often based upon what was included in previous Wills or on promises, agreements or wishes that were made during the Testator’s lifetime. 

In most cases, this discovery goes hand in hand with concerns over a factual change in circumstances in the later years of the Testator’s life. Often where the Testator had developed health conditions such as memory loss, Alzheimer’s disease and dementia. Although more prevalent in elderly testators, health conditions impacting capacity can affect people at any age. For example, cases have arisen over doubting capacity due to mental illness, brain tumours and brain injuries. 

Proving lack of testamentary capacity  

In the English legal system, it is a right for any person over the age of 18 to make a Will, and the mental capacity of the person who made the Will is presumed. Good evidence is needed to prove that the presumption of mental capacity should not be presumed. 

Even if the court’s suspicions of some impairment of the mind are aroused, this does not automatically mean the Will is set aside – as the law does not require a testator to have a perfectly balanced mind to make a will. For example, Testators who have dementia can sometimes still make a perfectly valid will, as can a testator who is spiteful or frivolous about beneficiaries. It is absolutely a test on the evidence and the circumstances for any individual case set against the legal test of testamentary capacity. 

If you doubt capacity and are considering making a claim, a specialist contentious trust and probate solicitor will always evaluate the legal testamentary capacity test and the circumstances with you, but as a guide, the grounds which need to be satisfied for a Will to be valid are that the testator: 

• Understood the act of making a Will and the effect it may have

• Understood the extent of the estate that will be disposed of 

• Understood the value of the entire estate – although this does not necessarily mean exact financials (as it is not usually relevant if the Testator thinks their house is worth thousands more or less than the reality, just that they know they own the house.

• Had the ability to show an understanding and appreciation of any moral obligations and responsibilities (it’s not usually relevant if the testator doesn’t act morally or responsibly, just that they considered it. The absence of this understanding in a will is frequent and of itself can indicate diminished mental capacity but is unlikely to persuade a court in isolation to other factors).

Assessing a claim for invalidity due to a lack of mental capacity

Contesting a Will can be time-consuming and costly to pursue and defend. However, disputes over testamentary capacity are usually heavily evidence-based. 

It’s important to seek legal advice and begin gathering evidence to assess the merits of a claim for invalidity due to a lack of mental capacity as early as possible. You will usually need to gather evidence, including medical records, witness statements and, if it wasn’t a homemade Will, where possible, notes of the professional who drafted the last Will. 

Gathering evidence can be timely and sometimes, when trying to obtain evidence, hurdles can arise. However, as soon as a specialist solicitor is instructed to act for you, they can assist you with evidence gathering.

If you require advice or assistance in making a Will or are considering contesting a Will, arrange an appointment with our specialist team, call us on 0161 427 0084 (Marple Bridge office) or 01484 442 700 (Holmfirth office).

Written by our Contentious Trust and Probate team