Victoria Riddleston
Senior Associate Solicitor
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Date Published:07 Nov 2016 Last Updated:28 Jul 2021

Challenging a Will: Lack of capacity

Dispute Resolution

When a person decides to make a Will, they must have the necessary mental capacity to do so. The difficulty is that capacity can fluctuate and can sometimes depend on the decision being made, for example, the decision to have toast for breakfast requires less capacity than the decision to make a Will.

The test for capacity also depends on whether you are making a day-to-day decision or whether you are making a Will. The test for deciding whether a person has capacity to make a Will dates back to a case from the late 1800s, Banks v Goodfellow (1870). Case law has developed the principles since then, but the test set out in Banks v Goodfellow is still the relevant test to be applied.

Accordingly, in order to make a valid Will, a person must:

  1. Understand that they are making a Will;
  2. Understand the extent of their estate (i.e. know what their assets are);
  3. Understand and be able to consider the claims which may be made against their estate; and
  4. Not be suffering from a disorder of the mind which affects their capacity.

If a Will is declared invalid due to lack of capacity, any previous Will shall take effect or the estate will be distributed on the basis of intestacy (i.e. when a person does not have a Will). This may result in the estate being distributed in a way which was not intended or desired by the deceased. Even if a person does lack capacity, however, it may possible to engage in the Statutory Will process to make a Will for the person who lacks capacity.

My blog, Dementia, capacity, and Will; what is the effect? explains why it is advisable to instruct a specialist solicitor to write your Will. The same is true of challenging a Will. If you are concerned that a Will may have been made by someone who lacked capacity or you are defending a Will that you believe was validly made, it is important to be able to identify the relevant evidence which may assist in either making or defending a claim. Our experts are specialists in this area, with three of our solicitors being part of the Association of Contentious Trust and Probate Specialists (ACTAPS).

If you wish to discuss any of the issues arising from this blog, or relating to lack of capacity generally, please feel free to contact me at victoria.riddleston@ellisjones.co.uk or 01202 057768.

Other Blogs in this series: