When an individual makes their Will, they must have an understanding of the document and its implications. This is known as having testamentary capacity. If the person making the Will, known as the testator, does not have testamentary capacity, the court can declare their Will to be invalid.
What is Testamentary Capacity?
Testamentary capacity refers to the level of understanding needed to be able to make a valid Will. The key case that sets out what the courts will consider is that of Banks v Goodfellow [1870]. To have testamentary capacity, the person making a Will must not be affected by any disorder of the mind that influences them when making their Will. They must also:
- Understand the nature and effect of making a Will
- Know the extent of their estate
- Be able to comprehend the claims that individuals may have about their estate
How Do The Courts Decide Whether Someone Had Testamentary Capacity?
Anyone claiming that an individual did not have testamentary capacity will need to provide evidence in support of their case.
In the case of Hawes v Burgess [2013], the courts stated that care should be taken when dealing with evidence provided by a medical professional who had not met or examined the testator.
If the Will had been prepared by an experienced independent solicitor who had met the testator, take their instructions, read the Will back to the testator and considered that the testator was capable of understanding the Will, then the Will ‘should only be set aside on the clearest evidence of lack of mental capacity.’
The evidence at the time will tend to outweigh the evidence provided later. To build a case for lack of testamentary capacity, it is usually necessary to obtain the solicitor’s file from the time that the Will was prepared, witness statements from those in the deceased’s life and relevant medical records.
How Else Can a Will Be Challenged?
There are various other grounds on which a Will can be challenged, including:
- The testator had a lack of knowledge and approval of the contents of the Will
- The testator was unduly influenced by someone into making their Will in the way that they did
- Fraud or forgery was involved
- The Will was not properly executed
If you were cut out of a Will or received less than you believe you need, it may be possible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This allows the following individuals to claim financial provision:
Those who are eligible to make a claim are:
- The deceased’s spouse or civil partner
- A former spouse or civil partner provided that they have not remarried or entered into another civil partnership
- A cohabiting partner who lived with the deceased for at least two years prior to their death
- A child of the deceased
- Someone the deceased treated as a child of the family
- Anyone who was being maintained by the deceased, wholly or partly, immediately prior to their death
A spouse or civil partner can claim a similar amount to that which they might have received in a divorce. Other individuals can claim ‘reasonable financial provision’, which the courts have held to be more than just enough to subsist on, but not enough to live in luxury.
What Happens If Someone’s Will Is Declared Invalid for Lack of Testamentary Capacity?
If the courts find that a Will is invalid, then a previous Will can take effect if there is one. If there is no other Will, then the estate will pass under the Rules of Intestacy. The rules set out who will inherit in order of preference.
If the deceased had a spouse and no children, the spouse would inherit everything. If they had children but no spouse, the children would share the estate equally.
If the deceased had a spouse and children, the spouse would inherit all of the deceased’s personal possessions and the first £322,000 of the net estate. The remainder of the estate is divided into two. The spouse will inherit one half and the children will share the other half equally.
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Contact Our Contentious Probate Solicitors
If you have concerns over the validity of a Will or you are an executor facing a claim of lack of testamentary capacity, contact us today.To speak to one of our expert contentious probate solicitors, ring us on 0330 173 3980, email us at info@witansolicitors.co.uk or fill in our contact form and we will talk through your situation with you and discuss how we can help.
