Posted by & filed under News, Uncategorised.

In order to make a valid Will you need “capacity.” In short this means you have to be able to understand what you are doing.

The legal test as to whether a person has the capacity to make a Will is of the utmost importance to both beneficiaries and solicitors alike. The rules as to whether a person satisfies this test have been refined through case law, and the current guidelines are found in the case of Banks v. Goodfellow.

If it can be proved that a person did not have the “relevant testamentary capacity” at the time of signing the Will, it will almost always mean that the Will is invalid – which can mean that the person’s assets do not go to the person they wanted to have them..

In Banks v. Goodfellow, it was held that a person is presumed to be capable of making a Will until the contrary is proved by acceptable evidence. The burden of proof only falls on those defending their position as beneficiaries when a “grave suspicion of incapacity arises”.

In order to satisfy this test, a person needs to understand:-

– the nature of what they are doing (to understand why Wills are made and what a Will does)
– , what property they are leaving (do they understand that they have a house, or £50,000, and how much money that is),
– the claims they ought to consider (do they know what relatives they have and what moral claims there might be on their Estate – e.g. to provide for their children?)

If there is any doubt about capacity or there is concern that someone might try and raise this later as an argument that could be used to contest the Will, it is common for a solicitor to ask for a medical opinion. The Courts hold medical evidence in strong regard in these matters, especially those where the doctor or consultant had extensive knowledge of the individual or had recently examined them. In most cases the person’s general practitioner fulfils this role, and if there is any question as to whether someone making a will has capacity then it will always be sensible to obtain a medical opinion which can be placed with the Will in order to avoid the possibility of the Will being contested after death.

Although a valid reason of contesting a Will, the accusation that a person lacked capacity is rarely raised on its own. Those bringing an action against the estate of the deceased often attempt to prove the person had been unduly influenced, coerced into giving the instructions that they did, or had a lack of knowledge, with the capacity argument being a background issue that supports their main argument. That aside however, the increase in understanding and research into illnesses of the mind such as Alzheimer’s and Dementia may mean that this issue becomes a lot more common in future contested estates.

A professionally drafted Will prepared after a careful consultation and properly documented by a Solicitor will make it a lot harder for challenges to a Will to be made.


Leave a Reply

Your email address will not be published. Required fields are marked *