Lacking capacity and the will

Testamentary capacity is the legal term used to describe an individual’s mental ability to make a will. Challenges arise in cases where the testator suffered from dementia or Alzheimer’s disease which has seen a significant rise in our ageing population over recent years. NHS data shows that some parts of the UK have seen the number of people diagnosed with dementia more than double in five years. Making it ever more important to ensure all measures have been taken at the time of will writing to illustrate the testator’s capacity.

The concept of capacity refers to being of ‘sound mind and memory’ and requires those challenging a validly executed will to demonstrate that the testator did not know the consequence of their conduct when they executed the will.

It is worth noting that mental capacity also includes circumstances where the testator was affected by temporary conditions. Including severe grief, when an individual was incapable of making a rational decision at the time of writing the will. The grounds for challenging a will where testamentary capacity is questioned, is beset with complexity and legal intricacies.


What Testamentary Capacity means and its significance?


It is important to be aware of what testamentary capacity means, and what elements a judge will be looking for to confirm whether the testator had the ability to write a will.

It is established in legal precedents that to have testamentary capacity, the person making the will must:

  • Understand what they are doing, the nature of the document they are creating and what effects those actions will have.
  • Understand the full extent of what they are distributing. For example, if they own a house, shares, money, or other property, having a general idea of the extent of their wealth.
  • Be aware of who their dependants are, and who is expecting to inherit from the will.
  • Be able to appreciate the effects of including or excluding people from their will.
  • Not have a ‘disorder of the mind.’

If the testator satisfies all the above criteria, they will be deemed to have had testamentary capacity and a will dispute is likely to fail.


The Golden Rule


The Golden Rule is the general principle that a solicitor making a will on behalf of a client, who suspects their client might not have testamentary capacity, should ensure a medical professional conducts an examination of the testator before they make their will. Medical evidence will be highly convincing to confirm the testator was of sound mind when the will was made. Challenging a will on the grounds of, lacking testamentary capacity will therefore, require investigations to ascertain whether or not the Golden Rule was followed when the will was made.

The level of understanding required by the person making the will to satisfy the requirements above, varies according to the nature of the will and the assets within the estate. For more complex wills involving high value assets, a higher level of understanding will need to be demonstrated.


If you have concerns and feel you have grounds to contest a will due to lack of capacity, please see here for more details. 

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