Testamentary capacity – mental capacity and challenging Wills

Mental capacity is critical to making a Will. The concept is known as ‘testamentary capacity’ and concerns the ability of a person (the testator) to make a Will.

Many disputes hinge on testamentary capacity, whether the testator had the necessary capacity to make a Will at the time their Will was written and signed.

In a recent case, the daughter of the deceased challenged the Will of her father which disinherited her and left nearly all of his estate to charity. In this instance, her father made a new Will just 25 days before taking his own life. The case turned on whether he had had the testamentary capacity to make that Will. The court found in favour of the charity, that he had had the necessary capacity to make the Will. He had explained his decisions at the time of making the Will with a solicitor, and left the money to a charity he had a personal connection with. The outcome has left the daughter not only disappointed, but with extensive legal fees, and she is facing losing her home.

Mental capacity is determined by reference to a 150 year old case Banks v Goodfellow. The test has four elements requiring the testator to:

• Understand the nature of his Will and the effect;
• Understand the extent of his property being disposed of;
• Be able to comprehend and understand who they would usually be expected to provide for; and
• Suffer from no disorder or delusion of the mind.

The test in Banks v Goodfellow isn’t a memory test, but you do need to understand what you are doing. Given the risks of a challenge, if there is any doubt as to capacity, the advice is to follow ‘the golden rule’ and seek the approval of a suitable medical practitioner or ask them to act as a witness.

Challenging a Will, or defending a challenge, can be very costly and the responsibility is on the person bringing the challenge to prove lack of capacity.

Should you have any concerns about capacity when making your Will (or a family member making theirs), or suspect there could be a challenge from a disappointed beneficiary, we would always recommend taking advice, and leaving a side-letter to explain your reasoning. Concerns about capacity can be addressed kindly and appropriately and prevent future challenges and expensive legal costs.

If you would like to speak to someone about making a Will, testamentary capacity and where capacity may be an issue, contact one of our specialist mental capacity solicitors.

This article has been co-written by Helen Bunker and Eleanor Catling.