When a person creates a will that appears rational, it's assumed they have the mental capacity to do so. However, this capacity may be later questioned in some instances, and if sufficient evidence is raised to cast doubt, the burden falls on the proponents of the will to prove the will writer was of sound mind.
Ultimately, the will could be invalidated entirely or partially if the court decides the testator (the person making the will) lacked the required mental capacity.
Capacity challenges are increasing due to the ageing population and the rise of illnesses such as dementia and Alzheimer's. People with dementia and Alzheimer's can still make a valid will, but their capacity to do so must be considered on a case-by-case basis.
Moreover, capacity is not a memory test. A will writer can have poor memory recall, perhaps due to their age, but still have sufficient capacity.
Understanding testamentary capacity
Definition and importance
Testamentary capacity refers to the testator's mental ability to fully understand and comprehend the will they are signing in order for it to be legally valid.
The starting point presumption is always that an adult has full legal capacity to make their own decisions - and unwise decisions alone are not sufficient to indicate a lack of capacity.
A thorough solicitor will observe their client's behaviour, study how they behave around accompanying friends or family, review any previous wills for dramatic changes, and keep concise notes for future reference.
Why capacity is so important
- Protection of testator's wishes: Safeguards the testator's true intentions
- Prevention of exploitation: Helps to protect against undue influence or manipulation by others
- Legal validity: A will made without proper capacity can be deemed invalid, potentially leading to intestacy.
Signs of a lack of capacity
- Cognitive decline: Noticeable memory loss or confusion about personal details or assets.
- Erratic behaviour: Sudden changes in personality or decision-making patterns.
- Medical diagnoses: Recent diagnoses of conditions affecting cognitive function.
- Unusual will contents: Unexpected exclusions of close family or inclusion of new beneficiaries.
- Timing: Wills made shortly before death or during periods of known illness or other personal trauma.
Medical conditions affecting capacity
Dementia and Alzheimer's disease
People with dementia and Alzheimer's disease may struggle with memory, reasoning and decision-making, which may fluctuate throughout the day.
Stroke
A stroke can damage parts of the brain associated with memory and problem-solving.
Brain injuries
Effects vary widely depending on injury, but sufferers might lack testamentary capacity.
Severe depression or trauma
Severe depression or trauma can lead to decisions that are out of character.
Substance abuse
Both intoxication and the long-term effects of substance abuse can impair clear thinking.
Schizophrenia and other psychotic disorders
Thought processes can become illogical for those with schizophrenia and other psychotic disorders.
The landmark case: Banks v Goodfellow (1870)
The 1870 case of Banks v Goodfellow remains the most significant case around testamentary capacity. In this case, John Banks left a will after suffering from mental health issues for many years. When he died the will was challenged by his nephew George Goodfellow, who was not included in the will.
The four-part test
According to Banks v Goodfellow, a testator must:
- Understand the nature of the act: Comprehend that they are making a will and its effects.
- Understand the extent of their property: Have a general idea of their assets and their value.
- Comprehend potential claims: Be aware of who might expect to benefit from their will.
- Not be affected by a mental disorder: Ensure no disorder of the mind is influencing their decisions about beneficiaries.
Modern application
While the core principles of Banks v Goodfellow remain, modern courts often apply this test in conjunction with contemporary medical understanding of mental capacity via available evidence.
Gathering evidence
Medical evidence
Medical records
Medical records provide evidence about a testator's mental health at the time the will was signed, including whether there has been an diagnosis for relevant conditions such as dementia or Alzheimer's.
Expert medical opinions
Medical experts can combine media records, cognitive assessments, and witness accounts to form a professional opinion on capacity.
Capacity assessments
Any capacity assessments conducted around the time of the will being made can be obtained and examined by professionals.
Legal and professional evidence
Solicitor's notes
Solicitors will make notes during the will-writing process, including any reasons for excluding family members from inheritance. They will also comment on the testator's appearance and behaviour.
Solicitors should apply the "Golden Rule", which states medical opinion should always be sought when capacity is in any doubt, including in the case of an aged or seriously ill testator.
Witness statements
People who were present at the will signing may be asked to comment on the testator's demeanour and behaviour.
Financial records
Uncharacteristic financial behaviour, including significant withdrawals or the sudden transfer of assets, can be examined. Evidence of any financial manipulation, as well as medical costs, can also be examined.
Personal evidence
Family and friend testimonies
Family members, friends, and caregivers may be asked to testify about the testator's mental state, behaviour, and general susceptibility to influence.
Diaries or personal writings
Diaries and personal writings can provide a unique insight into the will-writer's thoughts, behaviours and cognitive state at the time the will was made. Rational entries support the argument of mental capacity, while incoherent entries do the opposite.
Video or audio recordings
Any video and audio recordings made around the time the will was made can be useful evidence. Clear and coherent speech can also support the case for mental capacity.
The burden of proof
Presumption of capacity
Courts generally presume that a testator had capacity when making a will, especially if it was prepared by a solicitor or appears rational.
Shifting the burden
- Initial evidence: The challenger must provide sufficient evidence to raise doubts about capacity. This could include medical records, witness statements, expert opinions or personal documents.
- Burden shift: If doubts are raised, the burden shifts to supporters of the will to prove capacity.
Standard of proof
The standard is "balance of probabilities" - it must be more likely than not that the testator lacked capacity.
Steps to contest a will on capacity grounds
- Initial consultation:
- Speak to a solicitor specialising in probate and contentious probate matters and discuss potential outcomes.
- Initial investigations:
- Gather initial evidence to support your suspicions.
- Obtain a copy of the will and any previous versions.
- Enter a caveat:
- Prevent the grant of probate while investigating.
- Usually valid for six months, it can be renewed.
- Formal evidence gathering:
- Collect medical records, witness statements, and expert opinions.
- Consider instructing a medical expert for a retrospective capacity assessment.
- Pre-action protocol:
- Follow the contentious probate pre-action protocol.
- Exchange information with other parties to clarify issues and potentially settle out of court.
- Mediation or alternative dispute resolution:
- Mediation can be less costly and time-consuming than litigation.
- Issue court proceedings:
- If settlement isn't possible, file a claim in the appropriate court.
- Prepare detailed particulars of the claim outlining your case.
- Court process:
- Exchange of evidence, witness statements, and expert reports.
- Potential for further settlement negotiations.
- Trial, if necessary, where evidence is presented and examined.
- Judgment and potential appeals:
- Court decides on the validity of the will.
- Consider appeal options if the outcome is unfavourable.
Potential outcomes
- Will upheld: If capacity is proven, the will stands.
- Will invalidated: If lack of capacity is proven, the will is declared invalid. The estate may then be distributed according to a previous valid will or intestacy rules.
- Partial validity: Parts of the will may be upheld while others are invalidated.
- Settlement: Parties may agree to a compromise and agree a settlement.
Contesting a will on the grounds of lack of testamentary capacity requires careful consideration and early professional advice.
Further reading
The validity of a will can be challenged on several other grounds. We have further reading for each of those grounds:
