Lack of testamentary capacity

Testamentary capacity

For a person to make a valid Will they must have ‘testamentary capacity’.

This means that they must:

  • Be able to understand that they are making a Will, and the effect of making that Will.
  • Know the nature and value of their estate.
  • Understand the consequences of excluding/including certain people in their Will.
  • Not be suffering from a disorder of the mind that might influence their views.

These principles were set out in Banks v Goodfellow 1870 and although the law has developed since then, the principles are the same.

Although the Mental Capacity Act 2005 does set out a framework for assessing mental capacity, this is not relevant considering the validity of Wills prior to or after the act came into force, except for Statutory Wills made with the assistance of the Court (see e.g. Nicholas Strauss QC in Re Walker, Walker v Badmin [2015]). Therefore, case law such as Banks v Goodfellow 1870 is still the authority for the various rules in relation to  testamentary capacity.

How do I contest a Will for lack of testamentary capacity?

If you believe that when someone made their Will they did not satisfy any of the above four principles, you may be able to contest the Will for lack of testamentary capacity. Not everyone has the right to contest a will, however. You must have a beneficial interest, or a potential beneficial interest, in the Deceased’s estate.

Very often, those contesting a Will are a surviving spouse, child or cohabitee. If you are not sure whether you have the right to contest the Will, get in touch and we can advise.

If you are not permitted to contest the Will for lack of testamentary capacity, you could also consider making a claim for reasonable financial provision.

If you are able to contest the Will, the first step is to take legal advice. You can get fast advice without obligation from us by completing the form below.

Often the next step will be to apply for a caveat which prevents the Deceased’s assets from being distributed while the dispute is investigated. The caveat lasts for six months after which it can be renewed. In the meantime, many disputes are resolved before they go to court.

If the parties involved in the dispute cannot reach an agreement, a claim can be made to the court for a decision.

Lack of testamentary capacity: additional points to note

  • A person who makes a Will is called a testator (male) or testatrix (female). On this page where we have used the words ‘testator’ and ‘he’, the principles also apply to a ‘testatrix’ and ‘she’.
  • The testator must be of ‘sound disposing mind’ at the time when the Will or codicil was made (Arthur v Bokenham (1708) 11 Mod Rep 148; Palmer and Brown v Dent (1850) 2 Rob Eccl 284).
  • There is a presumption of a sound disposing mind- i.e. the presumption is that the testator was of sound mind in relation to disposing of his property under his Will when he made his Will. However, if someone questions the testator’s sanity, the person who is arguing that the Will should stand must prove that the testator was of sound disposing mind when he made his Will (Re Flynn, Flynn v Flynn [1982]).
  • There must  be a ‘sound disposing mind’ both at the time when instructions are taken, and when the Will is executed. However, provided that the Will is drawn up in accordance with the testator’s instructions (when the testator was of sound disposing mind), the requirement when he executes the Will is that he appreciates that he is being asked to execute the will that has been drawn up in accordance with his instructions – even if he is unable to follow all of its provisions at the execution (Clancy v Clancy [2003]; Re Perrins, Perrins v Holland [2010]).
  • Although there is no presumption per se, it is a very strong thing for a judge to find that a testator did not have mental capacity when his Will had been prepared by an experienced and independent lawyer following a meeting (Burgess v Hawes [2013]).
  • The fact that a testator is eccentric or was experiencing certain delusions does not necessarily mean there was a lack of testamentary capacity (Banks v Goodfellow (1870)). It must be shown that the delusion had, or was calculated to have, an influence on testamentary dispositions (Smee v Smee (1879); Montreal Trust Co v McKay (1957)).
  • The fact that a testator suddenly changes his Will without explanation is not evidence of a lack of testamentary capacity (Schrader v Schrader [2013]).
  • Deep grief can cause lack of mental capacity for the purpose of making a Will.  In Key v Key [2010] the testator was so devastated by the loss of his wife after 65 years of marriage that he was found to lack testamentary capacity in relation to a Will he made a week after the death. Similarly in Re Wilson, Turner v Phythian [2013] the testatrix’s deep grief in relation to the loss of her brother caused a disorder which affected her mental capacity.
  • If the testator makes a Will on the basis of false beliefs, it can be challenged. In Walters v Smee [2008] the judge concluded that a testatrix who was acting under misapprehensions from her impaired mental state (dementia) did not have capacity.  The testatrix thought that the beneficiary under the earlier will she made was stealing from her.  This was untrue. In Couwenbergh v Valkova [2008] and Re Ritchie [2009] the court upheld challenges where the reasons for omitting beneficiaries was false beliefs or irrationality.