Challenging a Will on Grounds of Capacity

Having capacity is a key component in determining whether the final wishes of the deceased will stand and are adhered to. This means one has to be mentally sound to fully understand their wishes and the effect they will carry on their assets and estate and to whom it might be inherited by. This is fundamental in determining the validity of a Will.

Presumption of Capacity

The legal presumption of capacity holds that a person has the ability of capacity to make decisions for themselves until the same is proved otherwise.

If one aims to challenge a Will due to lack of capacity then the burden of proof is upon the challenger to prove it.

However, the presumption can be challenged with the right evidence.

Some points to note:

• It is possible for a person to make some decisions but not all or the relevant ones
• Capacity can fluctuate
• Having a mental health diagnosis (such as dementia) is not conclusive evidence of capacity

The Test

The test for capacity, remains the same as established in the case very early case of Bank v Goodfellow (1870) which asks that the individual making the Will (the testator) must:

1. Understand the nature of making a will and effects;
2. Understand the extent of the property of which they are disposing;
3. Understand as to those who would have claims on the estate; and
4. Have no disorder of the mind that prevents their sense of understanding or the exercise of their natural faculties in disposing of their property by Will.

A Will made by someone who does not meet this four limb test and therefore lacks mental capacity is not valid.

Challenging a Will on the Basis of Lack of Capacity

In order to successfully challenge a Will on the basis of lack of capacity of the testator, in addition to demonstrating that the Bank v Goodfellow test was not met, it must also be demonstrated that the testator did not understand the following:

1. That they have authorised the completion of a Will on their behalf and do not understand the consequences of the Will;
2. They do not understand the assets and/or estate they own; and
3. They do not understand to whom they are leaving their assets and/or estate to.

You will need to obtain evidence from the GP, hospital and potentially an independent medical expert, as well as witness evidence from friends and family members.

However, ultimately, a court will then have to decide on the evidence whether they consider that the testator had capacity to give instructions and execute the will and sometimes that may even be against the medical evidence.

Capacity in Practice

In order to assess a person’s capacity in practice, the following are key considerations:

1. Does the person have any disorder of the mind or delusions?
2. Does the person have a diagnosis of a disability or mental disorder?
3. Have doubts historically arisen about the person’s decision making?
4. Will a professional medical opinion about the person’s ability to make independent decisions be required?
5. Have all practical steps been taken to help the person make an independent decision?

The latter point provides particular relevance to what is referred to as the ‘golden rule’ on capacity, which provides that an independent medical professional, such as a health or social care professional, who has experience in assessing mental capacity, may examine the testator so as to confirm their testamentary capacity.

The essentially acts as a legal shield to any challenges of a will based on testamentary capacity.
The application of the ‘golden rule’ should be followed in circumstances where the testator is demonstrating any disorder of the mind or delusions or is particularly vulnerable due to old age.

What happens when a will is set aside?

There are a number of practical implications worth considering when a will is set aside. These include, but are not limited to:

1. Incurring significant costs – it is important to consider whether prospective gains justify the legal costs you will incur, especially in circumstances where the value of the testator’s estate and assets is small.
2. Impact on family and relationships – challenging a will can cause emotional distress and jeopardise family dynamics.
3. Will you benefit from an earlier will – it is important to note that if you are successful in challenging the validity of a will, whether you will in fact benefit to any greater extent from a previous will or under the rules of intestacy if there is no valid prior will, otherwise there may be no merit in pursuing a challenge to begin with.

Final Words

Those assisting testators during the uncomfortable point in their lives when they are tasked with preparing a Will should be cautious in recognising their capacity to make the decisions independently and without undue influence.

Failing to heed this caution can have serious consequences if expensive and time consuming litigation is then embarked on to establish retrospectively whether the testator did or did not have capacity to prepare and execute the will.

Our dispute resolution experts have extensive experience in handling disputes related to Wills, probate, and estates. Our solicitors can guide you through challenging a Will, ensuring that your case is handled with care and professionalism. Whether you’re contesting on grounds of capacity or facing other inheritance disputes, we’re here to provide clear, practical advice tailored to your needs. To speak to one of our experts call 0330 822 3451 or request a callback.