When a person makes a will, the law assumes they have the mental ability to understand the decisions they are making. However, there are situations where family members or other interested parties believe the person who made the will did not have the necessary mental capacity at the time it was written. In England and Wales, this issue is known as testamentary capacity, and it is one of the most common legal grounds for challenging the validity of a will.
Dan Rich, a Solicitor who specialises in Contentious Probate, explains what testamentary capacity means, why someone might challenge a will on this basis, and how the court assesses such claims.
What Is Testamentary Capacity?
In the most basic terms, Testamentary capacity refers to a person’s legal and mental ability to make or alter a valid will. The legal test comes from the case Banks v Goodfellow (1870), which still governs the standard used by courts today.
Under this test, a person making a will must:
- Understand that they are making a will and what its effect will be.
- Understand the extent of the property they are disposing of.
- Be able to comprehend and appreciate the claims of potential beneficiaries.
- Not suffer from any mental disorder or delusion that influences how the will distributes assets.
If one or more of these elements are missing, the will may be considered invalid.
Why Someone Might Challenge a Will for Lack of Testamentary Capacity
1. Evidence of Cognitive Decline
A common reason for challenging a will is when the person who made it was suffering from cognitive conditions such as dementia, Alzheimer’s disease, or other degenerative neurological disorders. It can also consider circumstances surrounding the testator’s mental clarity, such as profound grief, or their mental health at the time.
If medical records show that the testator was experiencing significant memory loss, confusion, or impaired judgment at the time the will was signed, it may raise doubts about whether they understood what they were doing.
2. Sudden or Unusual Changes to the Will
Another red flag is when a new will dramatically changes the distribution of assets without an obvious explanation.
For example, if a long-standing will divided assets equally among children but a later will leaves everything to a single person, this may lead other beneficiaries to question whether the testator fully understood the consequences of the change.
While unusual decisions alone do not invalidate a will, they may prompt further investigation into the testator’s mental state at the time.
3. Vulnerability to Influence
People with diminished mental capacity can be more vulnerable to pressure or manipulation from others. In these circumstances, concerns about testamentary capacity often overlap with allegations of undue influence.
If someone with declining mental health was heavily dependent on a particular individual who then benefits substantially from the will, it may strengthen the argument that the testator did not fully understand the decisions being made.
4. Lack of Proper Legal Safeguards
Solicitors drafting wills are expected to take steps to ensure the testator has capacity. This may include:
- Asking questions about assets and family relationships
- Assessing the testator’s understanding of their decisions
- Requesting a medical opinion if there are concerns about mental capacity
If these safeguards were not followed—particularly where the testator was elderly or unwell—it may raise doubts about whether the will was prepared appropriately.
5. Medical Evidence Contradicting Capacity
Medical records can play a crucial role in will disputes. If records show diagnoses, hospital admissions, or clinical observations indicating confusion or impaired cognition around the time the will was signed, they may support a challenge.
Courts often rely on expert medical testimony to interpret such records and assess whether the testator likely met the Banks v Goodfellow criteria.
How Can We Help?
Challenging a will on the grounds of testamentary capacity is a serious legal step and requires strong evidence. Our experienced Contentious Probate team are well-versed in this area and can advise you on your options.
If you have concerns over the validity of a will and wish to contest it, please do not hesitate to make an appointment with Dan to discuss your circumstances. You can contact Dan and the team via email, or call them on 01633 492008.
