Where there’s a Will……increasingly, there is the possibility of a dispute!

With an ageing population and a steep increase in age-related illness, such as Alzheimer’s disease, it is not surprising that many probate claims involve an allegation that the testator was not of “sound mind” – that they lacked the necessary “Testamentary Capacity” to make a valid Will.

But what is “Testamentary Capacity”? The mere fact that a person suffers from a mental illness certainly does not mean that they lack Testamentary Capacity. Ascertaining capacity is not always a straightforward task however, it can often be a complicated and lengthy exercise which may require a medical report from a suitably qualified medical practitioner.

In some circumstances, the advice of a solicitor will be for a medical report to be obtained prior to the Will being executed – possibly even for the medical practitioner to be one of the witnesses to the signing of the Will. Although this may not be conclusive evidence of Testamentary Capacity, for it is always in the jurisdiction of the Court to determine capacity, it may go some way to dissuade a challenge to the Will on the grounds of lack of capacity.

Based on case law going back many, many decades, Testamentary Capacity requires a testator (the person making the Will) to show that they:

  • Understand they are making a Will and the effect of this
  • Are aware of what property/assets they own
  • Appreciate any legal or moral claims to which they ought to give effect in disposing of their property and,
  • Are not suffering from any disease of the mind or any insane delusion which interferes with the way that they dispose of their property – that the testator is not disposing of his property in a way that he would not have done if he had been of sound mind.

Where a Will has been professionally prepared by a suitably qualified solicitor, the courts are tending to find that the testator had mental capacity; that an experienced solicitor is unlikely to prepare a Will for someone if they thought the client did not have capacity. But, if there are doubts as to capacity this could indicate other problems, such as a claim that the testator was “unduly influenced” to make the provisions in the Will that they have.

To help avoid someone challenging a Will consider the following:

Obtain a note from your doctor confirming that in their opinion you have testamentary capacity

  • Use a qualified professional to prepare the Will (ideally, use a solicitor who is an Accredited member of Solicitors for the Elderly – SFE)
  • If you want to leave someone out of your Will, ask your solicitor to draft an appropriate note, or write a letter to the dis-appointed beneficiary setting out why you are not providing for them. This could be kept, unsent, with your Will, to be produced if necessary
  • Understand that a solicitor will want to see you on your own to ascertain YOUR wishes and so that they can be assured that they have sufficient capacity to make this very important document.

Ruth Brockett


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