In today’s world people are living longer and we are more aware of conditions affecting the mind, such as dementia. This has led to an increase in the number of challenges being made to Wills.
Capacity is a critical matter to consider at the time of making a Will. If there are any questions about whether a testator has the capacity to draft and/or execute their Will, it may result in the Will being held invalid if challenged. This could then mean that the testator’s estate does not pass in accordance with their true wishes.
What do we mean by ‘capacity’?
Testamentary capacity is the legal term used to describe the required mental capacity to make a valid Will. In order to have testamentary capacity the person making a Will must be:
- able to understand the contents of their Will and its effect.
- able to understand the extent of the property they are seeking to gift in their Will;
- able to understand the people for whom they would usually be expected to provide for and whom may have a claim against their estate; and
- are free from any delusion of the mind that would affect their attitudes to those people.
This is known as the Banks v Goodfellow test.
If a person making a Will does not satisfy all of the above criteria, they may be found to lack capacity and the Will held invalid. This will mean that the Will is not enforceable, and the Estate will be administered in accordance with the terms of any earlier valid Will, or if no earlier Wills exist, the Intestacy Rules.
What medical conditions can cause someone to lack capacity?
There is no hard and fast rule to establishing whether someone lacks capacity as a result of a mental condition. This is because capacity fluctuates and the diagnosis of a medical condition does not automatically render you lacking testamentary capacity. However, conditions which may affect someone’s testamentary capacity can include:
- Dementia
- Alzheimer’s
- Some learning disabilities
- Some mental health conditions, such as Schizophrenia or Bipolar Disorder
- Brain damage, for example from a stroke or other brain injury
- Temporary states of the mind, such as confusion, depression, or the effects of drugs or alcohol (this can include side effects as a result of taking certain prescribed medication).
Capacity assessments and medical evidence is vital
If there are any concerns regarding capacity, it is a good idea to obtain a capacity test or report from a GP or another suitably qualified medical professional who is familiar with mental capacity at the time of drafting and executing a will. This will help to avoid any challenge to capacity after death.
If there is no evidence of capacity at the time of drafting the Will then retrospective medical evidence can be sought if a challenge to a Will is being sought. This will involve an expert reviewing all evidence of capacity available, including medical evidence and witness evidence from friends and family of the Deceased.
What else can cause a Will to be ruled invalid?
Lack of capacity is not the only reason a will may be found to be invalid. Other claims include:
- Undue Influence – where someone is coerced into making a Will that they would not have made but for the pressure exerted on them, overpowering them.
- Forgery – where the Will was not made by the testator but instead forged by another individual
- Lack of knowledge or approval – where the testator did not understand or approve the contents of the Will. This include where a testator cannot read and therefore could not have checked the contents of the same.
- Invalidity due to marriage after the Will was made – A Will is automatically revoked upon marriage unless it specifically states that it is being made in contemplation of that particular person.
For more information about any of these issues, or if you have concerns over the validity of someone’s Will and need advice, then please contact one of our Contentious Probate solicitors by email or call on +44 (0)3333 231 582.
