In order for a will to be valid the individual who made the will must have been of sound mind to make it. They must have had the legal and mental capacity, or understanding, to make a will. This is often referred to as “testamentary capacity”.

Capacity challenges are on the increase. This is due to several factors including an increase in dementia related illnesses such as Alzheimer’s disease, an ageing population so people are living longer and more likely to be suffering from serious illnesses.

What is the test for capacity?

In order to make a valid will, the individual must:

  • understand that they are making a will
  • understand what property they have and what they are leaving under the will
  • understand if anyone else, such as other family members, may have claims on their estate and the consequences of excluding them from the will
  • not have been suffering from any mental disorder or delusion which influenced their views

If there are concerns as to whether the individual had capacity, then it may be possible for the will to be challenged on this basis. However, just because a person is old or suffering from an illness such as Alzheimer’s this does not automatically mean they do not have capacity to make a will, they may still be deemed to have had capacity.

Is capacity fixed?

Capacity is not set in stone and can fluctuate. A person may have capacity on the morning but not as the day progresses or vice versa. Also if the will is simple the individual is more likely to have capacity than if it was a complex will. Each case is different and needs to be assessed on an individual basis.

How is capacity assessed?

Ideally if a solicitor prepared the will, they would have satisfied themselves that the individual had capacity at the time of giving instructions for the will. If there was any doubt, then the solicitor should have obtained a medical report specially addressing the capacity point. If no such report was obtained then those challenging the will would require an expert medical report in their favour though this will be based upon the individual’s medical records. A statement should also be obtained from the solicitors who prepared the will about the circumstances surrounding the making of the will. This may give some clarity as to the person’s reasons for making the will or may be evidence that they did not have capacity. Other friends and family can often provide useful evidence about a person’s capacity, though the best witnesses are those who are independent and don’t stand to gain from the dispute.

Capacity challenges can be some of most emotionally challenging claims. Not only are other family members likely to be involved, but they may involve examining the deceased’s personal and medical history which could be quite distressing for everyone involved. It is therefore important that such claims are approached objectively and that the correct test is applied. Anyone who has concerns about an individual’s capacity to make a will or is having to defend a possible capacity challenge, should contact us. Our specialist team of lawyers have a great deal of experience in acting in such claims.