A Will made by someone who lacks mental capacity is not valid.  Just because someone is elderly or suffering from a mental illness does not automatically mean that they lack capacity to make a Will.

In fact, there is a very strong legal presumption that everyone does have capacity unless it can be proved otherwise.  This means that if someone wants to challenge a Will on the basis of lack of capacity then it is up to that person to prove it.

The challenger must show that the person who made the Will did not understand one or more of the following things:

  1. That they are making a Will and what the Will does;
  2. Roughly what assets they own; and
  3. Who the people are who they should think about leaving property to.

Below are recent cases in which the mental capacity of the testator has been challenged.

Should you have any questions about bringing or defending claims around the capacity of a person making a Will, please see our Frequently Asked Questions and case studies or contact a member of our team.

'Birthday party' Will of dementia sufferer is valid

A woman who made a new Will at her 88th birthday party did not lack mental capacity, even though she suffered from dementia. In the case of Simon v Byford & Ors ([2014] EWCA Civ 280) it was held that the testatrix’s failure to remember why she had made a previous Will in the terms she had did not mean she lacked capacity.

The testatrix was Constance Simon who made a new Will at her 88th birthday party in 2005 which benefitted all four of her children equally.

Her estate included 16 shares in the family company.  Each of the four children had an equal number of shares and the purpose of Mrs Simon’s modest holding was to prevent deadlock.

She had made four previous Wills.  The most recent, in 1996, had left the shareholding to her son Robert because she felt it was right that he should have control of the company.

At the tail-end of the party, when the discussion turned to death and taxes, Mrs Simon was told that her existing Will did not benefit her children equally.  She did not know why this was and was adamant that she wanted to make a new Will then and there, which she did.

Mrs Simon was suffering from dementia at the time.  The medical evidence did not really assist the Court because it seemed that Mrs Simon had good days and bad days and, of course, the question was whether she had capacity at the time she signed her Will.  The Court was persuaded that she did have capacity based on the evidence of the various witnesses who were present, who were found to be credible and consistent.  Based on the same evidence, the Court held that she also knew and approved the contents of the Will, which were read back to her a number of times.

Robert had appealed this finding on first instance.  His main argument was that his mother must have lacked capacity because she couldn’t remember her reasons for benefitting him to a greater extent in her earlier Will.  The Court did not agree.  The judges drew a neat analogy with remembering the kings and queens of England when you are younger and having to look it up when you are older.  It was simply a fact she had forgotten, which she could look up if she chose.

Window cleaner failed to prove deceased had mental capacity in disputed Will case

A Will which disinherited an elderly lady’s devoted nephew in favour of her window cleaner was overturned because she lacked mental capacity.

The case of Re The Estate of Julie Spalding (deceased) ([2014] All ER (D) 73 (Mar)) is a clear-cut example of how the burden of proof operates in these cases.

The testatrix’s nephew (B) spent 10 years caring for his mother.  He gave up his job to do so and, in return, she promised that she would leave her bungalow to him.

In 2005 the testatrix (S) suffered a head injury and her personality was said to have changed.  She turned on her son and accused him of conspiring against her.  She banished him from her home for the last six years of her life.

Her window cleaner (P) then took over as her sole carer and in December 2007, S made a Will leaving everything to P.

After her death, B successfully challenged this Will on this basis that S had lacked mental capacity when she made it.  The Court’s reasoning was as follows:

  1. S is presumed to have had capacity, unless it can be shown otherwise;
  2. The burden was on B to raise a doubt about her capacity.  Although the Will was rational on its face, there was no rational reason for S to have banished B from her life.  Thus, doubt was raised.
  3. The burden then shifted to P to show that S did have capacity.
  4. P did not produce any evidence of this.  Therefore the burden remained un-discharged and the Will failed.