When mental ability to make a will is in question?

6th February 2015 by

Ben Parr-Ferris, Senior Litigator, Contentious Probate team of Healys, continues his series of articles explaining the different ways in which Wills and Probates are contested. 

The mental ability to make a will is called testamentary capacity.  By far the most common complaint about a will is that the testator did not have testamentary capacity at the date when the will was executed.  In many cases this is because the testator was elderly and suffering from dementia at the time, but the cases are not only concerned with dementia.

The test for deciding whether a person had capacity to make a will was laid down as long ago as 1870 in the case of Banks v Goodfellow.  The requirements are that the testator must

  1. have understood the nature of his act, in other words he must understand that he was making a will, and have understood the effects of the will
  2. have understood the extent of the property in his estate;
  3. have been able to comprehend and appreciate the claims to which he ought to give effect; and
  4. not have been affected by a disorder of his mind that “shall poison his affections, pervert his sense of right, or his will in disposing of his property”.

These can be difficult questions to answer; the questions are only asked after the testator has passed away, and often there is conflicting evidence as to how able the testator was at the time.  There is often medical evidence as to the conditions that a testator was suffering from, but even that is not always conclusive.  Dementia patients for instance may have periods of time where they are able to understand all of the things they need to understand, even if at other times they are very badly affected by their illness.

In cases where capacity is a possible problem, the first steps will normally be to obtain evidence from any solicitor who was involved in the preparation of the will as well as obtaining medical evidence.

There has been some confusion over a new test of capacity that was introduced in the Mental Capacity Act 2005.  That test relates to whether a living person has capacity to look after his own affairs and recent case law has decided that it does not apply to deciding whether someone who has died had capacity to make a will.  Those cases may yet be changed by the higher courts though so the position may change.

In cases where there is some evidence of capacity issues but it is not clear, it may be that the will can be challenged because the testator lacked knowledge and approval.

If you require any further information on this topic or the services we offer please contact Ben Parr-Ferris on 020 7822 4104 or email ben.parr-ferris@healys.com.