lack of capacity

There are five grounds on which the validity of a Will can be challenged. This article focuses on the second ground known as ‘lack of testamentary capacity’ or ‘lack of mental capacity’.  

As life expectancies continue to rise more and more individuals are making Wills at an age their parents could never have imagined living to. But with that comes the greater risk of afflictions that can impinge on the capacity of the testator (the Will maker) when they make a Will later in life. That is one reason why this is one of the most common grounds to challenge a Will.

What is testamentary capacity?

Testamentary capacity is very specific to the act of making a Will. An individual could have capacity to undertake more mundane decision making activities but not have sufficient capacity to make a Will.

For the Will to be valid the testator must be over 18 years of age and able to understand:

  • The act of making a Will;
  • The extent of their estate (in general terms);
  • The claims of those who may expect to be considered for benefit; and
  • “that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property”.

The test and that final passage was laid down by the 1890 case of Banks v Goodfellow but remains the standard against which an ageing or debilitated testator’s mental capacity to make a Will is measured. 

Who has to prove what?

When applying for a grant of probate, the onus is on the person seeking to take out the grant of probate to show the testator had capacity. To make that workable in practice there is a presumption that the testator had testamentary capacity if the Will appears to have been validly executed and its contents appear rational. Without that presumption, the Probate Registries would probably grind to a halt.

It is then on the person challenging the Will to raise sufficient doubts about capacity. Only if they succeed in doing that does the burden then pass back to those seeking to uphold the Will (i.e. the beneficiaries under the challenged Will) to prove on balance that the testator had capacity.

The Golden Rule

An individual who has been written out of a Will, will often come to a solicitor and point to the fact that the testator was suffering from Dementia. A testator suffering from dementia can have lucid days, so that on one day they might not have capacity, but on the following day they do and so it is incredibly important to seek specialist advice to assist you in navigating these complex issues.

To try to avoid challenges to capacity, the courts have laid down what is known as the Golden Rule, where the opinion of a medical professional is sought before the Will is executed. You can find out more about the Golden Rule here. Even if the Will writer follows the Golden Rule that does not necessarily mean the Will in question is valid.

Capacity in practice

There are countless examples of cases which succeed on grounds of a lack of capacity, even where the Golden Rule was followed. For example, there was a case where two experts at trial were divided on the question of capacity and the court found that the testator, who was suffering from Multiple Sclerosis, did not have capacity when he made his Will. The Court made this decision despite the fact the solicitor preparing the Will had followed the Golden Rule and had a medical professional assess the testator’s capacity. In this case the fact that the testator disinherited his two daughters without any reason, pointed towards his mind being sufficiently impaired.

In a more obvious case, the testatrix (female will maker) was 88 years old and left her £2.5m estate to a charity excluding her children. The solicitors taking instructions recorded the reasons, which included theft, violence towards her and neglect. At trial these allegations were found to be untrue, although it was accepted she honestly believed them, and the conclusion was that the testatrix was affected by delusions.

Compare that last case with one where the testatrix excluded three of her 11 children who had reported her husband, their father, to the police alleging abuse. He pleaded guilty and was imprisoned. The testatrix refused to believe the allegations and made her Will accordingly. The court held that preparing the Will on an honestly held mistaken belief that her husband was innocent did not mean there was a lack of capacity.   

As can be seen, these sorts of cases can be finely balanced and it is really important to identify at an early stage a specialist legal adviser who is able to discuss the merits of you’re your case as well as the cost effectiveness of pursuing or defending a Will validity challenge. 

We offer claim review meetings whereby we will take you through each of the above grounds and consider whether or not it is cost effective for you to launch a claim against the estate or to defend a claim brought by another.