When someone makes a Will, in order for it to be valid they must have testamentary capacity. This means that they must understand the implications of making the Will. We look at the details and what to do if you believe that someone did not have the mental ability to make a valid Will.
It is sometimes the case that after a death, the deceased’s Will may cause concern. This could be because it was made very recently or because it has been changed in an unexpected way. While everyone in the UK has the right to leave their UK assets to their choice of beneficiary, they must have sufficient understanding of the situation when making their Will.
Some of the main grounds for challenging a Will are:
- The deceased lacked the necessary testamentary capacity to make a Will
- The deceased was unduly influenced by someone into making their Will in the terms that they did
- The deceased did not have knowledge and approval of the contents of the Will
- The Will was not correctly witnessed and executed
What is lack of testamentary capacity?
Testamentary capacity refers to someone’s ability to understand matters. If the deceased was suffering from some sort of mental impairment when they signed their Will, it could mean that the document is not valid.
The case of Banks v Goodfellow [1870] sets out what the courts will look for when deciding whether someone had the necessary mental capacity:
- Did they understand the nature and effect of making a Will?
- Did they understand the extent of the estate that is being disposed of in the Will?
- Did they understand and appreciate any potential claims over their estate, ie. the claims of those who might expect to receive an inheritance, such as close family members and dependants
- Were they suffering from a disorder of the mind that perverted their sense of right or prevented them from exercising their natural faculties in disposing of their estate in their Will?
How do I challenge a Will for lack of testamentary capacity?
It is assumed that someone has testamentary capacity unless it is proved otherwise. This means that if you want to challenge a Will, you will need to show that the deceased lacked testamentary capacity. There are several ways to find evidence of this, including:
- Obtaining the file of the solicitor who prepared the Will, who will have made notes of their conversations with the deceased and who is likely to have taken precautions relating to mental capacity
- Speaking to those who were in the deceased’s life at the time to see whether they have evidence they can contribute in respect of the deceased’s state of mind, their wishes and mental abilities
- Obtaining the deceased’s medical records
- Establishing whether any earlier Wills exist, which can help show whether the deceased made unusual or unexplained changes, which could support a lack of testamentary capacity
It can be difficult to show that someone did not have the mental ability to understand and make a Will, but where there is a body of evidence in support of this, the estate’s executors may be prepared to negotiate a settlement to avoid litigation and delays in the estate administration.
What happens if a Will is invalid for lack of testamentary capacity?
If a Will is declared invalid because the deceased lacked testamentary capacity and there is a previous valid Will in existence, this will take effect. If there is no earlier valid Will, then the estate will be inherited in accordance with the Rules of Intestacy. These set out who is entitled to the estate in order of preference, starting with the deceased’s spouse and children.
If you are considering challenging a Will, we can advise you of your options and the strength of your case.