Nowadays, it is not uncommon in the press to read of the disappointed beneficiary who is “challenging” a will. Sometimes this means they are exercising their rights to make a claim under the inheritance family provision legislation, but often the claimant is actually challenging the will’s validity for one of two reasons, alleging either:-

  • That the deceased lacked the necessary testamentary capacity to make a will or codicil when they signed it (so that the will is void); or
  • that the deceased was acting under duress or undue influence (so that it should be set aside).

These two challenges may be made in the alternative in the same claim but this note focusses on the issue of testamentary capacity, and more precisely what someone can do when making a will or a codicil to an existing will to try to ensure that a challenge after their death to their testamentary capacity will not succeed. If the will is void or set aside, the estate may pass to beneficiaries of an earlier will, or if there is none, to the beneficiaries entitled under the intestacy rules.

So what is testamentary capacity? Although the Mental Capacity Act 2005 has updated the law relating to mental capacity in several respects, the test of one’s capacity to make a valid will or codicil remains as set out in the case of Banks – v- Goodfellow in 1870. A testator must:

  • Understand the nature of making a will and its effects (in particular this will).
  • Understand the extent of the property of which they are disposing.
  • Be able to comprehend and appreciate the claims to which they ought to give effect.
  • Have no disorder of the mind that perverts their sense of right or prevents the exercise of her/his natural faculties in disposing of their property by will.

It is the duty of the executor submitting the will to the Probate Registry for the issue of a grant of probate, to satisfy themselves that the deceased did have that capacity, but for most people it will be obvious that they do, and in fact the Probate Registry will presume capacity when a grant of probate is applied for. However the issue may be raised in proceedings or threatened proceedings, by those who are disappointed or others who have a concern about the will’s validity, at which point testamentary capacity is under the microscope.

What can one do now to make the executors job of proving testamentary capacity easier, particularly if the person wishing to make or update their will has had a poor medical prognosis and/or symptoms or the possibility of mental confusion or dementia?

It goes without saying that allegations of lack of capacity are going to be made after their death, so they will not be there to be medically or psychiatrically examined at the time of the challenge. But here are some guidelines that you can follow, in order to ensure that your will is not contested.

  1. Don’t make a home-made will. Seek advice from a solicitor specialising in wills and probate work, who may also be a member of the Society of Trust and Estate Practitioners or the Law Society Wills and Inheritance Quality Scheme. This should assure that notes of the meeting and of steps taken to establish testamentary capacity are available after the death.
  2. Don’t sign the will at home or at work, but sign it in your solicitor’s office with witnesses who are either professionally qualified or at least easily traceable. Witnesses who are friends or neighbours will probably be unaware of the legal test of testamentary capacity and so will not have it uppermost in their mind when witnessing the will, whereas your solicitor will. Witnesses who cannot be traced cannot even give evidence.
  3. Consider seeking a medical opinion from your GP or from a medical specialist (say a psycho-geriatrician or Old Age Psychiatrist as they are sometimes called). Your solicitor may suggest this is a good idea anyway. The doctor can act as a witness to the will and/or give a written report to your solicitor to be kept with the will and/or keep medical records of any discussions about the will. Such reports or notes should refer specifically to the issue of testamentary capacity, not one’s capacity just to deal with finances, or health decisions, or other matters. Your solicitor can remind the doctor of the test to be applied, and the BMA will assist and support the doctor in reaching their view.
  4. Act promptly and do not leave making or updating the will until physical and mental health has deteriorated further. Not only is it then more difficult for the professionals to reach a view, and more likely a challenger will see room for argument, but the worry and stress of giving instructions and approving draft documents and signing the actual will can make the process much more difficult and upsetting than in the initial period after a diagnosis of serious health problems. Death-bed wills, or wills made shortly before capacity is lost are possible, but often provoke upset or even litigation.
  5. If your existing will does what you want, do not necessarily be tempted to make a new one just to reinforce it. A will that has been in place for many years, in the same form through various periods of one’s life, is less tempting to challenge than one making radical changes in the face of a diagnosis or decline in health.
  6. Consider leaving a personal letter or note setting out the reasons for the dispositions in the will and possibly the reasons why someone has been left out or left less than they might hope for. Such a letter is best written as a private letter (perhaps addressed to the executors and sealed, but stored with the original will) and so it does not have to be disclosed at all if the executors decide not to, or if no challenge materialises and to disclose it would cause hurt or anger. On the other hand if it is useful to show reasoning and intention, it can be useful to produce it after the death if necessary. Remember that after the death when the will is sent to the Probate Registry it will be a public document and anyone (beneficiary or not and including the local and national press) can get a copy. It may not be politic to set out in the will itself one’s reasons for all to see. That in itself may inflame the disappointed beneficiary, and provoke an angry challenge, or if the wording is less than articulate, accurate or entirely understandable can even fuel an allegation that capacity was lacking when the will was made.

If you’re concerned that your will may be challenged, then it’s important that you seek advice from your solicitor. They will then be able to suggest appropriate measures such as obtaining medical evidence or even video evidence of the will making process to minimise the possibility of any challenge. While probate disputes are becoming increasingly common, these guidelines can be of great help in minimising litigation, thus ensuring that your wishes are respected.

This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.