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Testamentary capacity – Making sense of mental fitness and the ability to make a Will without dispute

When it comes to contesting a Will, one of the most crucial aspects that often comes under scrutiny is the testamentary capacity of the individual who drafted it.

Testamentary capacity refers to the legal and mental ability of a person to make or alter a valid Will. Where a document is contested, it can directly influence the legitimacy of the Will in question.

Here, Lorraine Walker, Solicitor at Mander Hadley specialising in litigation and dispute resolution, explains testamentary capacity in more detail.

The legal definition of testamentary capacity

Testamentary capacity in UK law states that a person must:

  • Understand the nature of making a Will and its effects
  • Comprehend the extent of the property of which they are disposing
  • Be able to appreciate the claims to which they ought to give effect.

They must also not be suffering from any disorder of the mind that influences their Will in a way that they would not have acted if they were of sound mind.

Assessing testamentary capacity

The assessment of testamentary capacity is not always straightforward.

“It often involves careful consideration of medical evidence, particularly in cases where conditions, such as dementia or other cognitive impairments, may be relevant,” says Lorraine.

“Our team of solicitors, who have had training from Solicitors for the Elderly (SFE), play a critical role in this process, especially when there are concerns about a client’s mental capacity at the time the Will was made.

“We will ensure that appropriate assessments are conducted, often involving medical professionals, to ascertain the individual’s mental state.”

Contesting a Will based on lack of testamentary capacity

When a Will is contested on the grounds of lack of testamentary capacity, the burden of proof initially falls on the person alleging incapacity.

“They must provide sufficient evidence to raise a real doubt about the capacity of the testator at the time the Will was made,” says Lorraine. “If this threshold is met, the burden then shifts to those defending the validity of the Will to prove that the testator had the necessary capacity.”

The role of medical evidence

Medical evidence is a key aspect of contested Will cases focusing on testamentary capacity.

“Medical evidence is key,” says Lorraine, “and may include medical records, testimony from healthcare professionals who treated the individual, and expert opinions from psychiatrists or psychologists.”

Such evidence can provide crucial insights into the testator’s mental state and cognitive abilities at the relevant time.

“Understanding testamentary capacity is essential for anyone involved in the drafting or contesting of a Will,” says Lorraine. “It ensures that the wishes of individuals are respected and upheld in accordance with the law.”

Other reasons to contest a Will

Testamentary capacity is just one aspect of a Will that could lead to it being disputed. Lorraine points out the below reasons for which a Will could also be contested:

  • Undue Influence – The Will was created under pressure or manipulation from another person, compromising the true intentions of the testator.
  • Lack of proper formalities – The Will fails to meet legal requirements, such as being properly witnessed or signed.
  • Fraud or forgery – The Will is disputed on grounds of being fraudulently created or altered, or signatures were forged.
  • Revocation – The Will was revoked by a subsequent Will or legal act, but the previous version is mistakenly presented.
  • Lack of provision for dependents – The Will fails to make reasonable financial provision for dependents, leading to claims under the Inheritance (Provision for Family and Dependants) Act 1975.
  • Mistake or ambiguity – The Will contains mistakes or is unclear, leading to disputes over the testator’s true intentions.

Lorraine and our team of solicitors are experts in testamentary capacity and can assist you with any help you may require surrounding a contested Will. Reach out to us today for further guidance.

Lorraine Walker

Solicitor – litigation and dispute resolution

Prior to qualifying as a solicitor, I worked within the education sector as a senior leader in a secondary school.