An individual will be considered to have sufficient mental capacity to make a Will if they understand:
- The nature of the act of making a Will and its effect, i.e. that they are setting out to whom they wish their property to pass on their death;
- The extent of their property; and
- They are able to comprehend and appreciate the individuals for whom they are morally bound to provide and the consequences of not providing for such individuals.
If a Will appears rational then there is a presumption that the individual making the will (the testator) had mental capacity and the Will will be admitted to probate unless anyone can produce sufficient evidence to the contrary. A Will made by someone who lacks mental capacity is not valid. Deterioration of memory with old age does not necessarily mean that the testator lacks capacity and, even if there are general doubts about the testator’s capacity, a Will may still be valid if it can be shown that it was made during a lucid interval. Therefore, 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:
- That they are making a Will and what the Will does;
- Roughly what assets they own; and
- Who the people are who they should think about leaving property to.
'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  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.
Mrs Constance Simon 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 Simon, 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 could not 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)  All ER (D) 73 (Mar) is a clear-cut example of how the burden of proof operates in these cases.
The testatrix’s nephew, Cecil Bray, spent 10 years caring for his aunt, Mrs Julie Spalding. He gave up his job to do so and, in return, she promised that she would leave her bungalow to him. In 2005, Mrs Spalding suffered a head injury and her personality was said to have changed. She turned on her nephew and accused him of conspiring against her. She banished him from her home for the last six years of her life. Her window cleaner, Jim Pearce, then took over as her sole carer and in December 2007, Mrs Spalding made a Will leaving everything to Jim.
After her death, Cecil successfully challenged this Will on this basis that Mrs Spalding had lacked mental capacity when she made it. The Court’s reasoning was as follows:
- Mrs Spalding was presumed to have had capacity, unless it could be shown otherwise;
- The burden was on Cecil to raise a doubt about her capacity. Although the Will was rational on its face, there was no rational reason for Mrs Spalding to have banished Cecil from her life. Thus, doubt was raised.
- The burden then shifted to Jim to show that Mrs Spalding did have capacity.
- Jim did not produce any evidence of this. Therefore the burden remained un-discharged and the Will failed.
A woman who left her farm to her son did not lack mental capacity, even though she suffered from Alzheimer’s.
In the case of Lloyd v Jones and others  EWHC 1308 (Ch) it was held delusions were only relevant if they affected the testamentary dispositions made.
In 2005, the testatrix, Mrs Doris Harris, executed a Will. Her daughter, Sian Lloyd, was to receive £10,000 and the remainder of the estate was left equally to her son, John Harris, and his wife, Kathy - or the survivor of them. The estate was valued at just under £600,000, of which £575,000 was represented by a farm. In 2010, Mrs Harris died.
Sian challenged the validity of the Will on the grounds of lack of capacity and want of knowledge and approval of its terms. Her case was that her mother had begun to suffer mental decline from about 2001. By May 2004, when she was admitted to hospital after a collapse, she was suffering from confusion, forgetfulness, aggression and strange delusions and had developed Alzheimer's type dementia. Sian argued the circumstances in which the Will had been prepared without legal assistance were suspicious, and that the Will had not been read to Mrs Harris, who had long-term glaucoma and could not read without a magnifying glass, which she had not had with her on the day of execution.
Although John and Kathy admitted that Mrs Harris had begun to suffer Alzheimer's type dementia from about the time of her hospital admission in 2004, the court heard that Mrs Harris had not suffered any mental decline either at all, or until 2008 onwards. The family suggested that the Will represented Mrs Harris’ long stated intention to leave the farm to John and had been prepared on her clear and specific instructions. The allegations of Mrs Harris’ wandering, delusions, aggressive behaviour and inability to care for herself were denied. There was nothing in the terms of the Will to cause the court to be especially concerned about whether Mrs Harris had understood them.
The court held that however bizarre the delusions had been, it was not suggested that they could have had any effect and it did not indicate a loss of understanding to the extent that Mrs Harris would have fallen below the threshold capacity. It followed from those findings that Mrs Harris had had both the necessary capacity to make a Will, that she had read it and understood its terms and that she had known and approved of the contents of the will.
As these cases show, it follows that an individual is potentially capable of having testamentary capacity one day, but not the next.
Factors relevant to the assessment of capacity will include the complexity of the estate, the nature of the assets, and the number and identity of the beneficiaries. It is clear that the courts will not set a will aside on the grounds of lack of testamentary capacity lightly. Where there is a risk that capacity may be an issue (for example if an individual is suffering from dementia of any degree) it would be prudent for those involved in making the Will to engage a medical practitioner to verify the individual’s capacity at the point of execution of the Will. Similarly, lawyers involved in the preparation of wills should always make a detailed note, which can be used to demonstrate that they have satisfied themselves that the appropriate test for assessing testamentary capacity has been met.