Estate disputes: (in)capability to make a Will

The field of contentious probate is a multi-layered practise and there are many reasons why our clients may raise a dispute with a Will or deceased estate. A common claim brought to contest the validity of a Will is that the testator lacked capacity at the time the Will was made – this is an argument that the person did not have the ability to comprehend the effect of the document they were signing and what the impact on their estate would be. 

Historically the terminology familiar to people is that a Will is made “being of sound mind”, indicating that the Will maker is mentally capable of understanding and expressing their wishes. The modern standard for whether a person making a Will has testamentary capacity is developed from a combination of case law from the Courts and legislation set by Parliament.  

The key requirements of testamentary capacity are that the Will maker: 

1.   know that they are making a Will and what its effect will be; 

2.   understand the property that they own and how it will be distributed under the Will; 

3.   appreciate what action the Will maker should take regarding their assets; and 

4.   that the Will maker not be suffering from a disorder of the mind which would impact their ability to make testamentary decisions.

 Where a Will appears rational and is validly signed by the testator with two witnesses, then the burden to raise a doubt as to that testator’s capacity falls to the party bringing the dispute. Upon that doubt being raised, the responsibility for showing the testator did have the requisite capacity falls to the party seeking to prove the Will – normally the executor.

 Rationality of a Will is not always so easy to determine however, as the decisions of the Will maker can be validly altered in reaction to changes in relationships, assets or other more global events. In one influential capacity dispute case [Schrader v Schrader [2013] EWHC 466 (Ch)], Justice Mann declared that:

Will makers “do strange things and are entitled to be whimsical, capricious, vindictive, wrong in belief or their acts beyond explanation without that of itself proving lack of capacity”.

Whether a Will maker has the capacity required turns on the facts of each individual case.  

Some individuals may find that over time their memory fades, but this is not necessarily determinative on a lack of capacity – provided they remain aware of their assets, have intentions for them, and are able to understand how to bring those intentions to be effective via their Will. Similarly a person who is suffering from the early stages of dementia may not be precluded from making a Will – such diagnoses are not always constant impediments to the standard of capacity as periods of lucidity may allow the Will maker sufficient time and ability to express their understanding, and have a Will prepared and executed which expresses their wishes. 

As you can see, while capacity is a necessary factor for the validity of a Will, it is not always a clear-cut standard which can be met - this is why solicitors take great care in assessing the Will maker while taking the instructions for preparation of Wills. Further when a testator has passed away and questions are raised over capacity in a dispute over the estate, expert advice and insight is needed to evaluate the prospects of succeeding in such a Claim.