Losing a loved one can be a challenging time and it can be even harder if you suspect that their will does not reflect their true wishes. Lodders’ contentious probate specialist, Caroline Cowley, explains.
More and more, we’re seeing challenges to the validity of wills on the grounds of mental incapacity. For a will to be valid, the maker of the will (known as the testator) must have testamentary capacity. This is sometimes referred to as “being of sound mind”.
A common situation where this happens is when the testator is suffering from Alzheimer’s disease. As the number of age-related illnesses like dementia increase, so do the number of contested wills. Importantly though, the presence of a degenerative disease does not automatically mean the testator is unable to make a will.
What makes a will valid?
Section 9 of the Wills Act 1837 states that in order for it to be valid, a will must be:
- in writing;
- signed by the testator and acknowledged in the presence of at least 2 witnesses; and
- the testator must intend when signing the will that it should be valid.
If there is concern about will validity, the first step is to check that it’s been properly executed. This may involve contacting witnesses to get further detail about the circumstances of its execution. A court will also consider any previous valid wills made by the testator.
How do the courts determine mental capacity?
The person bringing the challenge must raise a genuine suspicion that the testator lacked capacity. If they achieve this, the burden of proof passes back to those who claim the will is valid.
According to the Mental Capacity Act 2005, a person lacks capacity if, at the time in question, he is unable to make a decision for himself because of an impairment of, or a disturbance in, the functioning of the mind or brain.
In practice, this means that judges may apply a test from the case of Banks v Goodfellow. This states that at the time the testator signed the will, he must:
- understand the nature of making a will and its effect
- understand the extent of his property
- comprehend and appreciate the claims to which he ought to give effect
- have no disorder of the mind which ‘shall poison his affections, pervert his sense of right, or his will in disposing of this property’
How to avoid someone contesting your will
- You can request a note from your doctor to confirm that you have testamentary capacity.
- You can use a qualified professional to prepare the will for you – choose someone who is a member of Solicitors for the Elderly.
- If you’re leaving someone out of your will, explain why. You can tell your solicitor to make a note, or you can write a letter for the disappointed beneficiary.
You should also consider getting a Lasting Power of Attorney (LPA) drawn up. You can read more about LPA’s on the Lodders blog here.
For more information, please contact Caroline Cowley.