Understanding Capacity to Make a Will

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss capacity issues in relation to disputed and contested Wills

What mental capacity is required to make a valid Will

We have touched on this critical issue in several previous blogs, for example: https://www.willclaim.com/5-things-aware-claiming-lack-testamentary-capacity/

And: https://www.willclaim.com/how-to-contest-a-will-the-capacity-required-to-make-one/

There are a huge number of learned articles and discussion pieces about this in the context of disputed or contested Wills and estates (see for example: https://www.thegazette.co.uk/all-notices/content/100844). Most people understand that if a testator (“testator” is a person, anyone in fact, who makes a Will) has a serious mental illness, dementia or Alzheimer’s etc, they might not have sufficient mental capacity to make a Will which makes the Will “illegal” or invalid.

However, the test for capacity or the facts which when brought together mean that an individual has sufficient capacity to make a Will are not completely understood, probably because they are so broadly defined as to give the Court (which is the final arbiter of all matters relating to the issue of Will validity) a great deal of flexibility when it comes to determine the position. This means that from a Will dispute or Will contest perspective there can be no absolute certainty in relation to the final outcome of a claim at trial.

So remind me, what criteria is used to assess whether an individual has sufficient mental capacity to make a valid Will?

The criteria or facts which determine if the testator has capacity to make a Will are drawn from the old case of Banks v Goodfellow which in a previous article we cited as follows:

(https://swarb.co.uk/banks-v-goodfellow-qbd-1870/) where the test for capacity was stated by Cockburn CJ:

It is essential to the exercise of such a power (of making a will) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a pray to insane delusions calculated to interfere with and disturb its function, and to lead to a testamentary disposition, due only to their baneful influence – in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand.’

Broken down this means in general that the testator must:
• Understand what a Will does and its effects
• Understand the extent of his property
• Is able to comprehend and appreciate the claims (on his or her estate) to which he/she ought to give effect
• In relation to comprehending and appreciating the claims to his/her estate, he/she must not be suffering from a disorder of the mind “which poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made”

The practicalities of trying to assess a deceased’s persons capacity may have influenced how the courts interpret the test of capacity

I have already alluded to this; the court has a great deal of flexibility when it comes to determining capacity and historically it appears reluctant to confine itself to the straight-jacket of a narrowly defined test. This is logical since no test is likely to cater for every situation and the human condition. The best example of this is in relation to the testator understanding the extent of his/her property at the time the Will was made. Unlike the other parts of the Will capacity test, a requirement to understand the extent of ones property can lead to huge evidential issues after the event. Property and/or assets are, after all, capable of quite precise determination at any given point – for instance, one could obtain bank records, pension valuations etc for a particular date. If then one comes to query capacity on this point subsequently, it is possible that on forensic questioning those supporting a Will would fail in most cases to prove actual understanding by the testator of the precise extent of his/her property. This seems to have been the position of the Court of Appeal in in Simon v Byfield and others (2014) EWCA Civ 280 (see https://www.casemine.com/judgement/uk/5b46f2062c94e0775e7f0bcb )

where it was found that “capacity depends on the potential to understand, it is not to be equated with a test of memory”. In other words, capacity in this context meant that the testator only had to be capable of understanding the extent and nature of his/her estate.

If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

We provide details about our no win no fee arrangements at https://www.willclaim.com/no-win-no-fee/.