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.
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:
Concerns commonly arise where:
Such factors do not automatically mean there was a lack of capacity, but they can justify closer scrutiny.
Expert medical evidence is often required, particularly where capacity is disputed.
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.
Early advice is essential. We can help you:
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.
Roman Kubiak TEP
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