One of the most common and complex grounds for challenging a Will is a lack of testamentary capacity. This refers to the mental ability of a person to make or alter a valid Will. If a Will is made without the requisite testamentary capacity, it may be declared invalid and could lead to the distribution of the estate changing entirely.
The authority in law
The leading authority on testamentary capacity is the case of Banks v Goodfellow, which sets out that a Will is only valid if the testator had the mental capacity to understand:
- The nature of making a Will and its effects;
- The extent of the assets being disposed of;
- The claims to which they ought to give effect, and
- The testator must also not be affected by any disorder of the mind that influences their decisions. It will be for the claimant to prove that the testator did not have the capacity at the point of the Will being executed.
When is a challenge to testamentary capacity likely to arise?
A challenge to testamentary capacity is likely to arise when the testator was elderly or had a diagnosis of dementia or Alzheimer’s disease or any other mental disorder, if there were a sudden or significant change to a previous Will, if there is an unexpected beneficiary to receive a significant proportion of the inheritance or a close family member has been excluded from the Will without any or any good reason or there is evidence of confusion, delusions or irrational beliefs at the time the Will was made.
What evidence should be relied upon?
Anyone making a challenge to the testamentary capacity of a testator should consider the evidence available. The Courts are likely to rely upon medical evidence and/or expert opinions on the testator’s capacity, but if the Will was prepared by a solicitor, then the evidence within that file, such as the contemporaneous notes prepared by the solicitor, is likely to be of equal importance. If a solicitor has doubt as to the testamentary capacity, then they may seek professional opinions as to the capacity before executing the Will, and this would also form part of the solicitor’s file.
If there is deemed to be a lack of capacity, what happens?
If the Court finds that a testator lacked capacity, the Will would be declared invalid and the estate may be distributed in accordance with the terms of a previous Will, or alternatively, if no Will exists, then the rules of intestacy would apply.
Are there any exceptions to this?
Whilst the general rule is that a testator must have testamentary capacity at the time of executing their Will, there was a narrow exception created by the findings in the case of Parker v Felgate. This case set out that a Will may still be considered valid, even when there is no testamentary capacity at the point of executing the Will, provided that:
- The testator had full capacity when giving initial instructions for the Will;
- The Will was then prepared in accordance with those instructions;
- The testator’s intentions had not changed; and
- At the time of execution, the testator is capable of understanding that they are signing a Will which they had previously given instructions in relation to.
This exception may apply in cases where there is a testator with a progressive cognitive decline, there are significant delays between instruction and execution, or there are concerns over capacity at the point of executing the Will.
How can we help?
Giacomo Ciccognani is a solicitor in our expert Dispute Resolution team.
If you have concerns about the above subject, please contact Giacomo or a member of our expert team in Derby, Leicester, or Nottingham on 0808 239 3916 or via our online enquiry form.
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