Making a Will and Mental Capacity

10 October 2017

By Head of Wills, Solicitor James Antoniou

When making a Will in England or Wales, the law requires you to fully understand what you are doing and its implications. This is known as having ‘testamentary capacity’ and the person making a Will is known as the ‘testator’.

For initial advice about making a Will call our Will writers on 03306069591 or contact us online and we will help you, or Start your Will online and get the right Will for you in 4 steps.

When Does Capacity Need to be Present?

The ‘testator’ needs to be able to understand what they are doing at the time the Will is made and also at the time it is executed (i.e. signed in the presence of two witnesses). However there have been instances where the Court has accepted that the Will is valid even when the testator did not have capacity at the time of signing, because they did have capacity when their Will instructions were given. The Will that they signed was then drafted in accordance with those instructions, so the Court was satisfied.

What is the Test for Capacity?

A Court case in 1870 established the test for proving whether a person had the required capacity to make a Will and the test still applies to this day.

There are four things that must exist at the same time to prove testamentary capacity. A person must:

  • Understand that the document being put in place will deal with the distribution of their Estate upon death
  • Understand and recollect the extent of their Estate – this doesn’t need to include every asset and liability, or their exact values but there must be a general awareness
  • Understand if there are people who may have a moral claim on their Estate, regardless of whether that person is included as a beneficiary in their Will
  • Not be suffering from a disorder of the mind that shall “poison his affections, pervert his sense of right or prevent the exercise of his natural faculties” - that is, the person must not be suffering from insane delusions.

Who Needs to Prove Whether Capacity Exists?

If someone wanted to challenge whether a Will is valid because of a lack of capacity, who is responsible for proving it one way or another?

This again has been settled by case law and the situation is as follows:

The person who wants to prove that the Will is valid needs to prove that the testator understood what they were doing. However, if the Will is executed correctly and appears rational, the Court will assume that they did have capacity.

So then it becomes the responsibility of the person objecting to raise a real doubt about capacity. If they can raise this doubt, it then shifts back to the first person to prove that the testator did have capacity.

What Evidence Can Be Used?

There is not a specific list of evidence that can be used to prove whether a person has testamentary capacity. The Court’s general approach seems to be to accept evidence that they feel is relevant.

This might include both oral and written evidence of how the Will was made and the circumstances surrounding it. This can be used alongside evidence of whether the Will aligns with the wishes stated by the testator both before and after the Will was written.

Expert evidence can also be used. However, the Courts find this to be less persuasive than evidence from eye-witnesses who knew the testator around the time the Will was made.

One way to help prove testamentary capacity is to have your Will professionally written. A professional service should ensure that an assessment of capacity takes place and this should be recorded on their file for future reference.

Sometimes a professional Will writer might advise that the signing of the testator’s Will is witnessed by a medical professional, or alternatively that a medical assessment is undertaken. This would form significant evidence if the Will was disputed in the future.

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