At Blackstone Solicitors, we assist clients across England and Wales with disputes involving the validity of a will. One of the most common grounds for challenge is a lack of mental capacity — formally known as “lack of testamentary capacity.”
The law recognises that a person making a will must have the mental ability to understand what they are doing and the implications of their decisions. If they did not, the will may be declared invalid.
This article explains what testamentary capacity means, how it is assessed, the legal grounds for challenging a will on this basis, and the process involved in bringing such a claim.
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What does “mental capacity” mean in this context?
In the context of wills, mental capacity refers to the testator’s ability to make decisions about the distribution of their estate. The legal test is set out in the 1870 case of Banks v Goodfellow, which remains the foundation of the law in England and Wales.
To have testamentary capacity, the person making the will must:
- Understand the nature of making a will and its effects
They must be aware that they are deciding how their property will be distributed after their death. - Understand the extent of their property
They do not need a precise valuation, but they must have a general understanding of the assets they own and their approximate value. - Understand the claims of those who might expect to benefit
They should be able to consider and weigh the claims of potential beneficiaries, such as family members or dependants. - Not be affected by a disorder of the mind
Any mental disorder should not influence their decisions in a way that leads to an outcome they would not otherwise have made.
When might capacity be in doubt?
Concerns about capacity often arise when the testator was elderly, seriously ill, or suffering from conditions that can impair decision-making. Common scenarios include:
- Advanced dementia or Alzheimer’s disease
- Severe mental illness, such as psychosis
- Brain injury or cognitive impairment
- The effects of medication or intoxication at the time of signing
- Situations where the will contains unexpected or unusual provisions
It is important to note that a diagnosis of a mental illness does not automatically mean a person lacks capacity. Capacity is decision-specific and time-specific — a person may lack capacity at one moment but have it at another.
Evidence used to prove lack of capacity
Challenging a will on the grounds of mental capacity usually requires detailed evidence, such as:
- Medical records — showing the testator’s health and cognitive state at the relevant time
- Expert reports — from medical professionals specialising in capacity assessments
- Witness statements — from those who observed the testator around the time the will was made
- Solicitor’s notes — including records from the will-writer about their interactions with the testator
- The “golden rule” — a legal practice whereby a solicitor arranging a will for an elderly or seriously ill client seeks a contemporaneous medical assessment of capacity
Gathering evidence promptly is crucial, as memories fade and records can be lost.
Who can challenge a will for lack of capacity?
Only certain people have the legal standing to bring a challenge. These include:
- Beneficiaries named in an earlier will who have lost out under the disputed will
- Family members or others who would inherit under intestacy rules if the will is invalid
- People with a financial interest in the estate, such as creditors in some cases
Your solicitor can confirm whether you have the necessary legal standing.
The process of contesting a will on mental capacity grounds
- Seek legal advice early
Time is critical. While there is no statutory deadline for validity challenges, delays can allow assets to be distributed, making recovery difficult.
- Enter a caveat
If probate has not yet been granted, a caveat can be entered at the Probate Registry. This prevents the grant from being issued and allows time to investigate.
- Investigate the claim
Your solicitor will obtain the will file, medical records, and other relevant evidence. They may also consult medical experts to provide an opinion on capacity.
- Attempt settlement
Many disputes can be resolved through negotiation or mediation, avoiding the costs and delays of court proceedings.
- Court proceedings
If settlement is not possible, your solicitor can issue proceedings in the High Court. The court will examine all the evidence to decide whether the testator had capacity at the time the will was made.
Burden of proof
The law presumes that a testator had capacity when they made their will. However, if there are sufficient grounds to raise doubt, the burden shifts to the party seeking to prove the will’s validity — usually the executors or beneficiaries who rely on it.
This is why gathering strong evidence early is so important. Without it, the presumption of capacity may be difficult to rebut.
Possible outcomes
If the court finds the will invalid due to lack of capacity, the estate will be distributed according to:
- An earlier valid will, if one exists; or
- The intestacy rules, if there is no earlier valid will
This can significantly alter who inherits and in what proportions.
Costs and risks
Contesting a will can be expensive. In England and Wales, the general rule is that the losing party pays the winner’s legal costs. However, in will disputes, the court may order costs to be paid from the estate, particularly if the dispute arose from genuine uncertainty about capacity.
Your solicitor can advise on funding arrangements, including conditional fee (“no win, no fee”) agreements where appropriate.
Preventing disputes over capacity
If you are making your own will and there could be questions about your mental capacity, you can reduce the risk of future disputes by:
- Obtaining a medical assessment at the time of making your will
- Choosing an experienced solicitor to draft the will and keep detailed notes
- Clearly explaining your decisions, especially if excluding close relatives
- Avoiding significant changes to your will during periods of illness or instability
Following these steps can help ensure your wishes are upheld and your family avoids costly disputes.
How Blackstone Solicitors can help
We have extensive experience in advising and representing clients in will disputes involving questions of mental capacity. Our services include:
- Assessing whether there is a viable claim
- Securing urgent steps to protect the estate
- Gathering and analysing medical and factual evidence
- Negotiating settlements to achieve fair outcomes without court proceedings
- Providing robust representation in court when necessary
We approach these cases with sensitivity, recognising that they often involve delicate family matters alongside complex legal issues.
Key points to remember
- Testamentary capacity is the legal ability to understand the act of making a will, the extent of one’s property, and the claims of potential beneficiaries, without mental disorder influencing decisions.
- The Banks v Goodfellow test remains the standard in England and Wales.
- Lack of capacity can render a will invalid, leading to an earlier will or intestacy rules applying.
- There is no fixed statutory deadline for challenging a will on this basis, but acting quickly is essential to prevent distribution of the estate.
- Strong evidence — medical, documentary, and witness — is vital to overcome the presumption of capacity.
Conclusion
Contesting a will on the grounds of mental capacity is a serious step that requires careful preparation and clear evidence. While the law protects an individual’s right to decide how their estate is distributed, it also ensures that this right can only be exercised by those who understand the implications of their decisions.
If you believe a loved one lacked the mental capacity to make a valid will, it is important to act quickly. At Blackstone Solicitors, we will assess your case, gather the necessary evidence, and guide you through the process with clarity and determination, ensuring your rights — and your loved one’s true wishes — are respected.
How we can help
We have a proven track-record of helping clients deal with contesting a Will. We are a multidisciplinary firm and have all the expertise inhouse to satisfy the most exacting requirements of our clients. We will guide you through all the necessary legal due diligence in a comprehensive and timely manner. We firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
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How to Contact Our Wills and Probate Solicitors
It is important for you to be well informed about the issues and possible implications of contesting a will. However, expert legal support is crucial in terms of ensuring your wishes are met as you would want them to be.
To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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