The Question of Capacity

According to Alzheimer’s Research UK there are currently 944,000 people with dementia in the UK, more than ever before, and this number is expected to rise. Coupled with increases in life expectancy and estate values (particularly where an estate includes property), it is no surprise that there is also an upward trend in the volume of disputes concerning the validity of a Will. Family members are more frequently considering whether the Deceased had the necessary mental capacity at the time their Will was prepared.

The question of what amounts to ‘capacity’ has been interpreted in many ways, often incorrectly, and therefore it is important to understand its legal definition and how this difficult issue is looked at by the Courts. The term used to describe a person’s legal and mental ability to make a valid Will is ‘testamentary capacity’. If a person making a Will lacks testamentary capacity at the time the Will is executed, that Will is invalid, meaning that the Deceased’s estate will pass in accordance with the Deceased’s most recent valid Will or, as the case may be, under the Intestacy Rules. This can lead to a very different outcome to the terms of the invalid Will, often to the benefit or detriment of a number of a parties. For that reason, there can be a lot at stake in establishing whether a Deceased had testamentary capacity when executing a Will.

The case of Banks -v- Goodfellow (1870) set out the test for testamentary capacity which is still used today and requires the person making a will to:

1. understand the nature of making a will and its effects;
2. understand the extent of the property which they are disposing of in the Will;
3. be able to comprehend and appreciate the claims to which they ought to give effect; and
4. have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.

If a will is complex (e.g. because the assets in the estate or personal relationships are complicated) then the Deceased may have to show a  greater level of understanding in to satisfy the test for testamentary capacity, than they would when making a simpler Will.

Where there is a dispute over the Deceased’s testamentary capacity this will often require an assessment of the Deceased’s medical records and expert medical evidence. Therefore, where there is any doubt about a person’s capacity to make a Will, a solicitor charged with drafting a Will should adopt best practice by following what is known as the ‘Golden Rule’. This involves seeking a professional medical opinion of testamentary capacity at the time a Will is executed and which can prevent later disputes about whether such a Will is valid.

If you believe there is a question relating to capacity of a family member following a Will being prepared it is important to get legal advice at the earliest opportunity and before a Grant of Probate is obtained.