One of the most common grounds upon which a Will is challenged is an allegation that the deceased lacked the mental capacity to make it. Such claims can be distressing for Executors and Beneficiaries alike, particularly where the Will was prepared professionally and reflects the deceased's wishes. While lack of capacity allegations can succeed in appropriate cases, not every diagnosis of dementia, memory loss or cognitive impairment will render a Will invalid.
Legal Test
In England and Wales, the court assesses testamentary capacity by applying the long-established legal test set out in Banks v Goodfellow. Broadly speaking, a person making a Will must understand that they are making a Will, appreciate the extent of their Estate, recognise those who may have a claim on their Estate and not be affected by any disorder of the mind that influences the disposition of their assets.
Evidence
When defending a Will against allegations of lack of capacity, the available evidence is often crucial. The court will consider the circumstances that existed when the Will was prepared and executed, rather than focusing solely on a person's condition before or after that date.
Solicitors' attendance notes can be particularly important. Detailed records showing the instructions provided, discussions that took place and the reasoning behind the deceased's decisions may provide powerful evidence that they understood the nature and effect of the Will. Where a solicitor took steps to assess the testator's understanding and recorded their observations, this can significantly assist in defending a challenge.
Medical evidence will also frequently be examined. Claimants often rely on medical records showing diagnoses such as dementia or cognitive decline. However, a diagnosis alone does not determine the outcome of a claim. The key question is whether the individual had sufficient testamentary capacity at the relevant time. In some cases, retrospective expert evidence may be obtained to assist the court in reaching a conclusion.
The court may also hear from family members, friends, carers and other individuals who had contact with the deceased around the time the Will was made. Their evidence can help paint a picture of the deceased's day-to-day functioning, decision-making ability and understanding.
Evidential burden
A party challenging a Will must usually raise a real doubt about capacity before the burden shifts to those seeking to uphold the Will. This means that mere suspicion or dissatisfaction with the terms of a Will is unlikely to be enough.
Early investigation is often essential. Obtaining the Will file, securing medical records and identifying relevant witnesses at an early stage can help parties understand the strengths and weaknesses of their position before significant costs are incurred.
Anna Kelly, Director in our Contentious Trusts and Probate team, comments:
Capacity disputes are rarely determined by a diagnosis alone. The real issue is what the person understood at the precise time the Will was made, and the evidence needed to answer that question can quickly become difficult to obtain. Early investigation is therefore critical, both to assess whether a challenge has proper foundations and to protect a valid Will from an allegation based primarily on suspicion or an unexpected outcome.
Contact Us
Capacity disputes are often complex and highly fact sensitive. Whether you are an Executor seeking to uphold a Will or a Beneficiary faced with a challenge, taking early legal advice can help protect your position and ensure that the relevant evidence is preserved and presented effectively. Our team have a wealth of experience in dealing with allegations of lack of capacity. To contact a member of our team, please click here.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
