5 Things to be Aware of when Claiming Lack of Testamentary Capacity

One of the ways to challenge a will is to make a case that the Testator, the person who made the will, did not have testamentary capacity. This is not always straightforward. In this blog, we look at 5 things to be aware of if you are considering a will dispute claim on this basis.

1. Testamentary capacity or undue influence?

In order to be valid, a will must be made by a testator who has testamentary capacity, – that is, someone who is sound of mind enough to make a valid will. You can  challenge a will on the basis that the will itself is invalid, because the person who made it was not sound of mind at the time the will was made. Their mental state must be such that they could not have understood the consequences of their decisions for their estate when they made the will. Lack of testamentary capacity often arises in cases where the testator suffered from dementia or Alzheimer’s disease.

If the testator was sound of mind, but was under the influence of another person when the will was written, a claim for undue influence might be a more appropriate ground upon which to challenge the validity of a will. Alternatively, if you were financially dependant on a now-deceased person and their will does not adequately provide for you, it is possible to challenge the will under the Inheritance (Provision for Family and Dependants) Act 1975.  Rather than challenging the validity of the will itself, this would allow you to apply to the court for a different distribution of the testator’s property that provides you with reasonable financial provision.

2. The test for testamentary capacity

It is important to be aware of what testamentary capacity means, and what elements the judge will be looking for to confirm whether or not the testator had such capacity. It was established in the case of Banks v Goodfellow (1870-71) L.R. 11 Eq. 472 that in order to have testamentary capacity, a claimant must:

• Know what property they own, which will be distributed in the will: the claimant must know, for example, if they own a house, shares, money or other property, having a general idea of the extent of their wealth.
• Be aware of who their dependants are, and who is expecting to inherit from the will.
• Understand the nature of the document they are creating: the testator must know that they are making a will.

If the testator satisfies all of the above criteria, they will be deemed to have had testamentary capacity and the will dispute will fail.

3. The Golden Rule and testamentary capacity

The Golden Rule is the general principle that a solicitor making a will on behalf of a client, who suspects that their client might not have testamentary capacity, should ensure that a medical professional conducts an examination of the testator before they make their will. This is because in a will dispute over testamentary capacity, medical evidence will be highly convincing to confirm that the testator was sound of mind when the will was made. When challenging a will for lack of testamentary capacity, it is therefore important to ascertain whether or not the Golden Rule was followed when the will was made.

The Golden Rule was established in the cases of Kenwood v Adams [1975] CLY 3591 and Re Simpson [1977] 121 SJ 224. In the case of Wharton v Bancroft (2011) EWHC (Ch) 3250, the judge decided that a solicitor had not been negligent in not adhering with the Golden Rule because “a solicitor… cannot simply conjure up a medical attendant”. Solicitors do not always follow the Golden Rule, but in cases where they do obtain medical evidence of testamentary capacity, a successful claim of lack of testamentary capacity will be very difficult to achieve.

4. Not Just Wills

In the case of DMM, Re (2017) EWCOP 33, a claimant challenged her father’s capacity to marry. Marriage has the effect of automatically revoking any previous wills thanks to section 18 of the Wills Act 1837. Therefore, capacity is also a relevant issue in disputes over a deceased person’s estate, not just to wills, but other decisions made by the testator that will effect the distribution of their property.

5. Family Consequences

Another issue to consider when challenging a will for lack of testamentary capacity is the strain that will disputes can have on families. Calling into question the testamentary capacity of a relative is likely to cause family tension. In addition to the high burden of proof, this is an important consideration to take into account when deciding whether there is sufficient evidence for a successful claim of lack of testamentary capacity.

If you have any concerns about a will that you are a beneficiary under – or think you should have been a beneficiary under – and would like to discuss whether it is possible to challenge the will, talk to us today. We are experienced will dispute solicitors, and can usually handle matters on a no win no fee basis.