If a will is successfully challenged on the grounds that the testator lacked testamentary capacity, the court will set aside the will. This means that the testator’s estate will be distributed in accordance with the terms of their previous will or, in the absence of any prior testamentary documents, the rules of intestacy, which may be vastly different from their wishes.
It is therefore crucial that, amongst other requirements, a testator has the requisite testamentary capacity to make a will – but what does this mean?
What is Testamentary Capacity?
Testamentary capacity is the testator’s mental and legal ability to make a will. It is assessed by reference to a long-standing common-law test, established in Banks v Goodfellow (1870) LR 5 QB 549, which provides that a person making a will must:
- Understand the nature and effect of making a will.
- Understand the extent of their estate and the property that they are disposing of.
- Have the awareness and ability to comprehend any claims from people who might expect to benefit from their estate.
- Have no ‘disorder of the mind’ or ‘insane delusions’ that influence the gifts that they would ordinarily making in their will, pervert their sense of right, or poison their intentions.
Mental capacity is complex and can fluctuate. Seeking advice from specialist legal professionals it critical, particularly in the circumstances where a testator is suffering from a condition that may have an impact on their capacity. Legal professionals will be able to assess a testator’s capacity and implement appropriate safeguards to ensure, so far as possible, that a testator’s final will is valid.
Challenging Wills
Where a will is properly executed and appears rational, there is a presumption that the testator had the requisite testamentary capacity unless the contrary can be proven. Further, where a will was prepared by a solicitor, strong evidence is required to argue that a testator lacked capacity. However, there are many circumstances in which a will may be successfully challenged on the basis of capacity issues, and each case is fact specific.
If you have any concerns regarding the validity of a loved one’s will, or require assistance with defending a claim brought on the grands of lack of testamentary capacity, our Contentious Trusts and Probate Specialists can assist.