Family disputes after death | ​Testamentary Capacity

Family disputes after death | ​Testamentary Capacity

Testamentary Capacity - What does this actually mean and why is it important?

In order to make a valid Will, you must be of sound mind, memory and understanding at the time of making that Will. In other words, the maker of a Will (the testator) must have capacity (sound mind, memory and understanding) in order for the Will to be valid.

This does not mean that you must have been in a perfectly balanced state of mind at the time. Making decisions based on emotion does not mean that you lacked the necessary capacity to make a Will. After all, the purpose of making a Will is to see your estate divided as you wish. Even if you wanted to leave some asset to a particular person with an unkind motivation, or decide to cut someone out, this does not necessarily indicate a lack of capacity to make that decision.

The long established case of Banks v Goodfellow [1870] sets out the requirements that a person making a Will must fulfil. They must:

  • understand the nature of the act and its effects;
  • understand the extent of the property of which he/she is disposing;
  • be able to comprehend and appreciate the claims to which he/she ought to give effect; and
  • must not be effected by any "disorder of the mind" that shall "poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties and that no insane delusion shall influence his will in disposing of this property and bring about a disposal of it which, if the mind had been sound, would not be made".

Understand the nature of the act and its effects

The person needs to have had an understanding of what they were doing when they made a Will, what it meant and what would happen as a result of it. So, for example, if they didn't really understand what a Will was, perhaps they had a brain injury and couldn't comprehend this, the required capacity would not be there.

Whether or not a person has the required mental capacity to make a Will is a factual question which is often determined by medical evidence. However, the evidence of those closest to the person who made the Will is also relevant. For example, a doctor may only see a patient twice a year and therefore has only those two sessions to base any verdict on whether that person has capacity. A close relative or friend is likely to see the person far more frequently, and potentially at times when it is apparent that they are not at their most lucid. If the evidence of those people is contrary to the evidence contained in the medical records, the Court must determine how much weight to place upon the evidence.

Some mental impairments are clearer than others. Some will reach a debilitative stage where it becomes apparent that the person no longer has the required capacity to make a Will. Some will provide for more 'peaks and troughs' in a person's mental state which means that on some days they have understanding of their affairs and on other days their memory may be impaired. To succeed in contesting a Will on this basis, it must be shown that at the time the Will was made, the person did not have the required capacity to make a Will.

Understand the extent of the property

A person only needs to have the capacity to understand the extent of their property and need not possess a deeper knowledge of their entire asset portfolio. A very broad understanding of the property that they have and can therefore give away under the Will is sufficient. There are very few cases in which this criteria alone has successfully shown a lack of capacity.

Comprehend and appreciate the claims to which he/she ought to give effect

Where there is evidence that the person did not consider leaving part of their estate to a close relative (i.e. someone that it would be expected would be included in the Will) or did not consider that a particular person would potentially be able to make a claim on their estate, this could be indicative of a person lacking the necessary capacity to make a Will. If the person was advised properly at the time the Will was entered into, this issue would have been flagged up by the solicitor.

What can I do?

Where a Will appears to be rational and contains no apparent irregularities, there is a presumption that the testator had the required capacity to do so.

This presumption is reversed however where it can be shown through medical records or sufficiently strong evidence from family and friends that the person had a history of mental impairment or memory loss. In those instances it is for the person that seeks a determination that the Will is valid to prove that the person had the necessary capacity to make a Will.

Obtaining legal advice at the earliest possible stage is vital. It is also important to gather as much evidence as possible, including medical evidence and evidence of any potential witnesses.

What does this mean?

If the Will is successfully contested, this means that the court confirms the Will is invalid, and the estate passes as per the deceased's earlier Will. If they do not have an earlier Will then the estate is distributed according to the intestacy rules.

At Clapham & Collinge we have a dedicated team of experts who are able to provide you with all of the necessary information, support and legal advice on will disputes and how they can be resolved. Contact us today on 01603 693500 or email us using the 'Make an enquiry' form. Appointments available at our Norwich, North Walsham, Brooke and Sheringham offices.