People can often be surprised about the distribution of loved one’s estate and can consider contesting the will. One of the grounds for contesting a will is on the basis that the person making the will lacked the capacity to do so. Capacity to make a will is known as testamentary capacity.

So what is testamentary capacity?

The legal test for this comes from the case of Bank v Goodfellow (1870). This case decided that to make a will, the person making it must:

• Understand the nature of the act i.e. that they are making a will and what the will does;
• Broadly understand the rough value of their estate;
• Comprehend and appreciate the claims to which they ought to give effect- so appreciate who might expect to inherit from their estate, although they do not have to leave them anything; and
• Not be suffering from a disorder of the mind, or any insane delusions, which:
  • poisons their affections
  • perverts their sense of right, or;
  • prevents the exercise of their natural faculties’, in disposing of their property by a will.

So how do you establish that someone lacked testamentary capacity 

Contentious probate cases can be difficult as the main witness, the deceased, is not here to explain what happened. Therefore, someone contesting a will is reliant on evidence that can be obtained from other sources.

One of the first steps when disputing a will prepared by a solicitor is to make a Larke v Nugus request. This allows the solicitor who prepared the will to answer a series of questions, including some about the deceased’s mental capacity. With the executor’s consent, the will file can also be released.

We can also obtain the deceased’s medical records under the Access to Health Care Records Act 1990. These may give an indication of the deceased’s capacity. Witnesses can also be helpful, especially if they are an independent third party who does not stand to benefit from the will being disputed.

If we believe there is sufficient suspicion about the deceased’s capacity, we will then consider obtaining an expert report from a doctor. 

Some points to remember 

The test for testamentary capacity is specific. They could have a lack of capacity to make day to day decisions or to manage financial affairs, but it does not mean they did not have the capacity to make a will.

The same also applies to someone who has dementia or a mental health diagnosis; it does not necessarily mean they did not have sufficient capacity to make a will.

Also, capacity is time and date specific. We need to consider whether the deceased had capacity at the time they signed the will and if they didn’t, whether they had capacity when they gave the instructions for the will.

If you have concerns about someone’s capacity when they made a will, please contact us to discuss how we can assist you to investigate whether the deceased had testamentary capacity. We can explain the different ways to contest a will, and what grounds could be most applicable to your individual circumstances. 

We can also assist if you are an executor or beneficiary and someone else is alleging the deceased lacked testamentary capacity or any other claims against an estate.

Whilst there is no time limit to bring a claim against the validity of a will. The sooner you get legal advice, the less likely it is that the estate would have been distributed. 

Although you can still dispute a will where the estate has been distributed, it can make things more complicated so it is best to seek legal advice as quickly as possible.