Challenging a Will based on lack of capacity: a guide to testamentary capacity

What is testamentary capacity?

For a Will to be valid, the person making it (the testator) must have sufficient mental capacity. This is known as testamentary capacity.

If someone lacks testamentary capacity, the Will is invalid. Therefore, lack of testamentary capacity is one way to challenge a Will.

In this article, we explore how testamentary capacity is assessed, how to prove lack of capacity andwhat happens if the deceased did lack the mental capacity to make a Will.

What is the test for testamentary capacity?

There is a legal test to establish if someone had the mental capacity to make a Will.

The legal test to determine testamentary capacity was determined by the court in the case of Banks v Goodfellow.

To have testamentary capacity, the testator must:

  1. Understand the nature of the act and its effects

This means that the deceased must have understood:

  • they were making a Will;
  • that a Will determines what will happen to their assets when they die; and
  • the implications of the Will they are making.

The deceased will not necessarily lack testamentary capacity if they did not understand the collateral consequences of their Will, the extent of anyone else’s property nor the significance of their assets to the beneficiaries.

Also, it is not a memory test; the testator simply must have the ability to understand.

  1. Understand the extent of the property of which he is disposing

The person making the will must have a general idea of the assets they have.

They do not have to list every single asset and its value, but have the ability to understand the size of their estate.

  1. Comprehend and appreciate the claims to which he ought to give effect

To have capacity to make a Will, the deceased must have understood who may expect to benefit from their Will or understood who they were excluding by making the Will.

Reference to a previous Will can be helpful to show the testator has considered those being excluded under the current Will, or who will receive less than before.

However, there is no requirement for the testator to discuss their previous Will or the reason for the change.

To have testamentary capacity, the testator just had to be capable of accessing that information and understand it if they were reminded of it.

If a testator forgets family members or close friends, they may lack capacity but simply a failure to remember or recognise them is not enough.

  1. Not be suffering from a disorder of the mind, or insane delusions, which causes them to make a Will they would not have made if they were of sound mind

Someone who has a mental illness or reduce cognitive ability does not automatically lack testamentary capacity.

Someone with impaired capacity or a mental illness will only lack the mental capacity to make a Will if it leads to them making a Will which they would not have made if they were of sound mind.

Equally, there is no requirement for the deceased to have a diagnosed mental illness. Severe grief or being under the influence of alcohol has been classed as a ‘disorder of the mind’.

When applying the test, it should be remembered that it is transaction and issue specific. This means the nature and complexity of the Will, the testator’s estate and the moral claims on their estate must be considered when determining if the testator was of sound mind.

Steps to take to challenge a Will

If you believe a Will may be invalid as the testator lacked capacity, there are various steps which may be appropriate:

  1. Enter a caveat to stop a grant of probate;
  2. Obtain the Deceased’s medical records;