If a person makes a Will and at the time of making the Will they did not have the mental ability to fully understand what they were doing, then the Will can be challenged on the basis that they lacked ‘testamentary capacity’.

Testamentary capacity is normally presumed unless evidence is adduced to put it in doubt. The burden of proof then shifts onto the person propounding the Will to prove the testator indeed had capacity. Whilst putting capacity in doubt may seem simple enough, recent case law has shown how difficult it can be to succeed in a capacity challenge. Gathering evidence of lack of capacity is naturally not easy. It requires an assessment of the state of mind of the testator at a point in time in the past, often many years before their death.

What is meant by “testamentary capacity”? The legal test is a so called Banks v Goodfellow test. In order for a testator to be considered to have testamentary capacity he must, at the time of making the will, be able to:

  • understand the nature of his acts and their effects, i.e. what he is doing at the time and the consequences;
  • understand the extent of the property of which he is disposing, i.e. the testator must know what it is that he owns, though not necessarily every last detail; and
  • comprehend and appreciate the claims to which he ought to give effect, i.e. the testator must understand who he/she might like to gift to and what claims those or other people may have against the estate as a result of his actions.

In addition, the testator must not be suffering from a mental disorder which would inhibit his ability or cause him to dispose of his property in a way that he otherwise would not have done had he been of sane mind.

It is important to remember that the court is only concerned with the testator’s mental capacity at the time of making the Will. Medical expert evidence on that point will always be sought. This Expert evidence is, however, limited and can be overruled as the expert did not see and assess the mental state of the testator at the time when the Will was made. The expert will prepare the report based on the review of the medical records and statements made about how the testator was at the relevant time. This, however, is often not conclusive. That is why the evidence of friends and family, the witnesses to the Will and the Will drafter will often be extremely relevant.

Degenerative illnesses such as Alzheimer’s are problematic as they can take hold one day and ease the next. It is in those cases the evidence of witnesses and will drafters and how reliable, honest and clear they come across will be most important.

There are many legal intricacies involved in challenging a will for want of testamentary capacity. If you are therefore considering such an action, you would be best advised to seek professional legal advice at the earliest opportunity.