Testamentary capacity

Testamentary capacity

A will is only valid if the person making it had the mental capacity to do so at the time it was executed. Testamentary capacity is a common ground for challenging a will, particularly where the deceased was elderly, unwell or vulnerable.

Assessing capacity requires careful analysis of medical evidence, the circumstances surrounding the will, and the legal test applied by the courts.

What is testamentary capacity?

Testamentary capacity is assessed using the legal test set out in Banks v Goodfellow. To have capacity, the person making the will must have been able to:

  • understand the nature and effect of making a will
  • understand the extent of their property
  • comprehend and appreciate the claims of those who might expect to benefit
  • not be affected by any disorder of the mind that influenced their decisions
  • Capacity is time-specific — a person may have capacity at one time but not another.

When do concerns about capacity arise?

Concerns commonly arise where:

  • the will was made shortly before death
  • the deceased suffered from dementia or cognitive impairment
  • there were significant changes from previous wills
  • the will was made during illness, hospitalisation or medication changes
  • the deceased was isolated or dependent on others

Such factors do not automatically mean there was a lack of capacity, but they can justify closer scrutiny.

How is testamentary capacity proved or challenged?

Evidence often includes:

  • medical records and GP or consultant notes
  • capacity assessments or contemporaneous medical opinions
  • solicitor attendance notes and file records
  • witness evidence from those who knew the deceased
  • previous wills and long-standing testamentary intentions

Expert medical evidence is often required, particularly where capacity is disputed.

What is the burden of proof?

Where a will appears to have been duly executed, there is a presumption of capacity.

However, if there is real doubt, the burden may shift to the person seeking to uphold the will to prove capacity.

What should you do if you suspect a lack of capacity?

Early advice is essential. We can help you:

  • assess whether capacity is genuinely in issue
  • obtain medical and legal records
  • instruct appropriate experts
  • protect the estate from distribution
  • pursue or defend court proceedings

How Hugh James can help

Our private wealth dispute solicitors has extensive experience in complex capacity disputes, including cases involving dementia, mental illness and fluctuating capacity. We combine careful legal analysis with practical guidance to achieve fair outcomes.

Key contact

Roman Kubiak TEP

Partner
Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team. He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Roman Kubiak is described by a client as “tremendously capable, he knows what he is doing. He’s a national figure.” Another source adds: “Roman is exceptionally knowledgeable, he is very pragmatic and very solution-oriented.”

Chambers & Partners

A natural and dynamic leader’, the ‘very impressive’ Roman Kubiak heads the firm’s Private Wealth Disputes team and is noted for his ‘deep knowledge of estates and trusts law’.

The Legal 500

Related services

Private wealth disputes Contesting a will Grounds for contesting a will

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