What is Testamentary Capacity?

23rd January 2020 Will Disputes

As average life expectancy increases and the population becomes older, there is an increased risk that the health problems associated with ageing will mean that many of those who seek to execute a Will later in life do not have adequate testamentary capacity to do so. If a court determines that an individual lacked testamentary capacity at the time their Will was drafted and executed, their Will shall be found to be invalid. This blog will explore how testamentary capacity is established and how a Will may be challenged on the basis of lack of testamentary capacity.

Testamentary capacity is a legal term that is used to describe a person’s cognitive ability to execute a valid Will. The case of Banks v Goodfellow [1870] sets out the test for testamentary capacity in order to execute a valid Will, and is as follows:

A testator must:

a) Understand the nature of making a Will and its effects,

b) Understand the extent of the property of which he is disposing,

c) Be able to comprehend and appreciate the claims to which he ought to give effect,

d) Have no disorder of the mind that perverts his sense of right or prevents the exercise of his natural faculties in disposing of his property by Will.

Where there are concerns with regards to an individual’s testamentary capacity and the testator has consulted a legal professional to draft their Will, the legal professional is under a duty to consider as part of their instructions whether they consider that the testator has adequate testamentary capacity in accordance with the test set out above so as to enable them to execute a Will. If there are any concerns regarding capacity it would be appropriate for a legal professional to take steps to obtain evidence from a medical professional that attests to the testator’s mental capacity which can be presented as evidence to the court that the individual was capable of making their Will.

Whilst this is a potential safeguard that can be put in place where a solicitor drafts a Will, difficulties can arise where a testator drafts their own Will without the assistance of a legal professional. Where this occurs, there is usually no evidence to demonstrate that a testator has capacity nor that any assessment of the testator’s testamentary capacity has taken place and it would be unusual for there to be any notes considering the capacity of the testator. Under these circumstances, concerns over testamentary capacity are more likely to arise, leaving a Will vulnerable to a potential challenge on the grounds of lack of testamentary capacity.

When considering a challenge to a Will on the basis of lack of testamentary capacity, it is important to note that there is a presumption of capacity and it is for the challenger provide evidence to the contrary. Once the court is satisfied that there are questions to answer in respect of capacity the burden of proving capacity will fall on the personal representatives of the testator. With this in mind, it can be difficult to collect evidence to prove that the testator had lacked testamentary capacity at the time their Will was drafted or executed. Medical or witness evidence can be crucial in determining whether an individual had testamentary capacity at the time of executing their Will, and, where a legal professional is instructed, their contemporaneous notes of their attendance will also offer assistance.

If you have concerns that an individual may not have had adequate testamentary capacity when executing their Will or you are the Executor of a Will that is facing a challenge on the basis that the testator lacked testamentary capacity, you should obtain specialist advice and assistance. Challenges as to testamentary capacity can be complex and it is therefore important to seek expert legal advice before deciding whether to proceed with, or defend, a challenge to a Will.

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Alison Parry is a Partner located in Manchester in our Commercial Litigation, Will and Trust Disputes department

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