Testamentary capacity is a fundamental and complex concept in estate planning and probate law. It refers to an individual's mental and legal ability to make or modify a valid will, ensuring that their wishes regarding the distribution of their property after their death are accurately reflected and legally enforced. However, challenges to testamentary capacity can arise, leading to a contentious legal battle that can be emotionally and financially taxing for all parties involved. In this article, we will explore and discuss the legal perspective and implications of testamentary capacity.
Testamentary capacity is the term used to refer to a person’s mental and legal ability to make a valid Will. Establishing testamentary capacity is essential in estate planning as it ensures that an individual’s wishes are accurately reflected and legally enforceable. If a person making a Will is later found not to have had testamentary capacity the Will itself may be found to be invalid, resulting in an earlier Will or the intestacy rules dictating how their Estate is administered when they die.
The law in relation to testamentary capacity goes back to the case of Banks v Goodfellow which was decided in 1870.
To establish testamentary capacity a person making a Will must:
Testamentary capacity is specific to the time the Will was made. Someone with fluctuating capacity can still make a valid Will if they do so whilst they have capacity.
A variety of circumstances may affect a person’s testamentary capacity:
Undue influence is when someone has coerced the testator into making a Will that reflects their own interests, rather than the true wishes of the testator. The person exerting undue influence may be a relative, friend, caregiver, or even a lawyer. The testator may have been vulnerable, such as due to old age, grief, illness or mental incapacity and therefore more susceptible to manipulation. If undue influence is established, then the Will they make as a result of that undue influence can be deemed invalid.
Mental capacity refers to an individual’s ability to understand the nature and effect of their actions, including making a Will. Mental capacity can be lost due to a number of reasons, such as dementia, Alzheimer’s disease, or certain mental illnesses. If a testator did not have the required mental capacity to make a Will at the time it was signed, then the Will may be invalid.
It is important to note however that a mere diagnosis of dementia or Alzheimer’s disease does not of itself invalidate a Will nor is it definitive proof of a lack of capacity.
A Will may be found to be invalid if the person making it was suffering from delusional beliefs at the time which impacted their ability to make decisions. A person who wrongly believes that one of their children is stealing from them may make a Will leaving that person out but if the delusional belief can be proven, the Will may be invalid.
Challenging a Will on the grounds of testamentary capacity can be a complex process involving extensive legal arguments and evidence. It is therefore important to work with an experienced contentious probate lawyer who can help you navigate the legal process and build a strong case.
The Courts will often order a retrospective capacity assessment to determine whether a testator had the necessary mental capacity to make a valid Will. The assessment may involve reviewing medical records, speaking to witnesses, and considering any notes taken when the Will instructions were given. The assessment is usually carried out by a doctor or a psychiatrist specialising in mental capacity.
It is up to the person alleging that the Will is invalid to prove that the testator lacked testamentary capacity. This can be a difficult burden to meet.
If you are concerned that a Will may be invalid because the person who made it lacked testamentary capacity there are immediate steps that you can take to investigate matters and to stop the Will being relied upon until you have more information.
If you have any questions or would like to seek further clarification. Please contact Jennifer Laskey on jennifer.laskey@howespercival.com for more information on this subject,
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