divider

separator

5 things to know about testamentary capacity

HOW TO CONTEST A WILL – THE CAPACITY REQUIRED TO MAKE ONE

/ 0 Comments /

HOW TO CONTEST A WILL – THE CAPACITY REQUIRED TO MAKE ONE

There are limited grounds to dispute or contest the validity of a Will. By far the most common (which is usually the easiest to prove), is that the person making the Will (called the “testator”) lacked sufficient mental capacity to do so.

Dispelling the myths
We are often told that a particular individual cannot have had sufficient mental capacity following a diagnosis of dementia or Alzheimer’s disease. This is not necessarily the case. In reality very little “mental capacity” is required to have sufficient capacity to make a valid Will. In relation to a Will dispute or Will contest claim where the Will is being challenged, it is simply a question of degree. For instance, how bad is the loss of memory? A diagnosis of mild dementia is unlikely to lead to a successful challenge against the legal validity of a Will, unless that is, there is a severe impact on decision-making.

The primary test of capacity in Will dispute and Will contest claims
Is there a primary test of capacity in Will dispute and Will contest claims? Yes there is. It is in a very old case called Banks v Goodfellow (https://swarb.co.uk/banks-v-goodfellow-qbd-1870/) where the primary legal test of capacity was stated by Cockburn CJ:

It is essential to the exercise of such a power (of making a will) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a pray to insane delusions calculated to interfere with and disturb its function, and to lead to a testamentary disposition, due only to their baneful influence – in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand.’

Whilst 1870 is a long time ago, this “test” still stands today!

The key elements of the capacity test in Will dispute and Will contest claims
So what are the key elements of the capacity test in Will dispute and Will contest claims?

1. That a testator shall understand the nature of the act and its effects

This ought to be straight-forward. The testator or the person making the Will must understand the purpose of the Will and what it will do; in other words that the Will governs what happens to their money and property after they die.

So far so good. But….

2. Shall understand the extent of the property of which he is disposing

This is one of the most difficult areas in Will dispute and Will contest claims where many of the challenges against the legal validity of a Will are made. The context is this. An aged individual making a Will close to death is often not in apparent control of their finances and often because their health issues (eyesight, hearing and/or mobility) make it impossible for them to do so. PLEASE NOTE I have been careful here not to mention a condition which might adversely affect their so-called mental capacity. So, where one is challenging the legal validity of a Will, it is immediately possible to spot a difficulty where there is physical incapacity but not necessarily mental incapacity in relation to a Will dispute claim. The issue is that the individual with a physical incapacity and who has handed over the control of his or her finances to someone else because of their physical incapacity, might not then have an immediate and comprehensive understanding of the extent of his or her property even though mental capacity is retained. With this in mind, Judges appear to have watered down the requirement to actually understand the full extent of his or her property:

The requirement to know the extent of one’s estate does not mean knowing its value down to the last penny. Furthermore, evidence is not necessarily required of a testator’s actual understanding, but rather of a capacity to understand these matters. Legally, capacity can be acquired via suitable explanation. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1925203/)

3. shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties ..

This is usually the most fertile area of disputes and with some evidence of a strange or unusual decision by the person making the Will (who for instance leaves his or her estate to a neighbour or distant and hitherto unknown relative or “friend”), is often the source of considerable debate in Will contest and Will dispute claims. Afterall a “disorder of the mind” might only be a mild dementia or other mental health condition such as depression. The problem, as ever, is in proving it has affected the Will makers decision making process. Although some evidence might point one way, it is almost guaranteed that the opponent or defendant to the claim will produce evidence pointing the other which creates considerable risk for the individual challenging the legal validity of the Will on this basis.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

separator

separator