Testamentary capacity: When does a will become vulnerable to challenge?

Was the will a valid expression of their wishes? Or are there grounds to challenge it?

Questions like these arise regularly in contentious probate disputes and often centre on a key legal issue: testamentary capacity.

What is testamentary capacity?

When someone executes a will (when the will is signed and witnessed) the testator must have sufficient mental capacity to understand the decisions they are making.

A lack of testamentary capacity is one potential factor which would render a will invalid. If a will is invalid, the most recent prior valid will applies. If the testator (the person making the will) has no previous will, and the estate will be governed by the rules of intestacy.

The Banks v Goodfellow test

The test for mental capacity was set out in a 19th century legal case of Banks v Goodfellow. That case tells us that the testator must have the requisite capacity to:

1. Understand the nature of the act of making the will and its effect;
2. Understand the extent of the property which s/he is disposing;
3. Be able to comprehend and appreciate the claims to which s/he ought to give effect; and
4. Not to be affected by a disorder of the mind that shall poison his/her affections, pervert his/her sense of right, or prevent the exercise of his/her natural faculties.

Clearly, the language of Banks v Goodfellow is now very much outdated. The law has since developed and, in many areas of life, the statutory test for assessing capacity under the Mental Capacity Act 2005 applies. That statutory test focuses on whether the individual can understand, retain, use, and weigh information when making a decision, alongside their ability to communicate that decision. When it comes to a testamentary capacity assessment in respect of someone’s will, the courts will still apply the old test of Banks v Goodfellow, albeit the courts may perform a ‘cross check’ using the modern statutory test.

When does testamentary capacity become an issue?

In many cases, concerns about capacity are not raised during the deceased’s lifetime. The issue often only comes to light after death, when family members discover the contents of the will and are surprised by the provisions it contains.

Common situations that can give rise to questions about testamentary capacity include:

• A will being made shortly before death.
• A significant departure from previous wills.
• The exclusion of close family members.
• A diagnosis of dementia, Alzheimer’s, or another cognitive condition.
• Evidence of memory loss, confusion, or impaired decision-making.
• Circumstances in which one person appears to have had major influence over the deceased.

Whilst none of these factors automatically mean a will is invalid, they are often the starting point for further investigation.

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Take Me There

Does dementia mean a person cannot make a valid will?

No. This is one of the most common misconceptions in will disputes.

A diagnosis of dementia does not automatically prevent someone from making a valid will. Equally, the absence of a formal diagnosis does not guarantee that a person had testamentary capacity.

What falls to be assessed is whether the individual had capacity at the time the will was executed.

Many individuals with dementia retain sufficient capacity to make a will, particularly during the earlier stages of the condition. Equally, someone without a diagnosis may still lack the mental ability required to understand the decisions they are making. Each case turns on its own facts and the available evidence.

Not every capacity concern leads to a successful claim

A family member’s belief that the deceased was confused or forgetful is not, by itself, enough to invalidate a will.

The court will look carefully at the evidence. It is not uncommon for disappointed beneficiaries to assume a will must be invalid because they disagree with its contents. Equally, an apparently unusual or even unpopular decision does not necessarily indicate a lack of capacity.

For that reason, specialist advice at an early stage can be invaluable in assessing the merits of a potential challenge before significant costs are incurred.

Who must prove testamentary capacity

Testators are assumed to have capacity to make a will. As such, it is for those who want to challenge the validity of the will to produce evidence or point to circumstances which rebut the presumption of testamentary capacity. If evidence of suspicious circumstances is produced, the burden may shift to those who claim that the will is valid to demonstrate that the testator did have capacity. Often, contemporaneous medical records are the best source of evidence.

It is much easier to avoid the disputes in respect of a testator’s capacity in cases of very elderly or unwell testators if a medical practitioner confirms capacity and records evidence of their assessment prior to the will being executed. This is sometimes known as the ‘Golden Rule’.

How we can help

Disputes concerning testamentary capacity are often emotionally charged and legally complex. They frequently arise at a time when families are already dealing with bereavement and strained relationships.

Our contentious probate team advises executors, beneficiaries and family members on all aspects of will disputes, including challenges based on testamentary capacity, undue influence and lack of knowledge and approval.

If you have concerns about the validity of a will, or if you are defending a challenge brought by another party, obtaining early specialist advice can make a significant difference to the outcome.

If you have any concerns regarding testamentary capacity, the validity of a will, or any other related queries, please get in touch with our Contentious Probate solicitors.