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Testamentary capacity – how is this determined?

With an ageing population and an estimated 850,000 people in the UK living with dementia, it is perhaps unsurprising that a large number of contentious probate claims are based on an allegation that the testator did not have the requisite testamentary capacity. Lodders’ contentious probate specialist Laura Abbott explains this and discusses how testamentary capacity is determined.

The threshold for a person having testamentary capacity is very low. The test is laid out in the nineteenth century case of Banks v Goodfellow.  Essentially the test is a threefold test in that the testator must:

  • understand that they are making a Will;
  • be aware of the extent of their property;
  • appreciate the claims on them to which they ought to give effect; and
  • be free from any insane delusion of the mind that would cause them reason not to benefit those people.

There was a lot of uncertainty when the Mental Capacity Act 2005 was introduced as to whether this would have any bearing on the test but recent case law has confirmed that the test remains the same.

Case law over the last few years has heavily found in favour of the testator having testamentary capacity, particularly where the will has been professionally prepared.  The courts are tending to find that experienced solicitors would not prepare a will for a person if they feel they did not have capacity.

In Hawes v Burgess in 2013 the judge said it would be a “very strong thing” to find that the testator did not have capacity to make a Will, when it had been prepared by an experienced and independent solicitor following a meeting with her, where that solicitor had read the Will back to her and considered (and had recorded in an attendance note) that she  was capable of understanding the Will.  He said that a Will so drafted by a solicitor “should only be set aside on the clearest evidence of lack of mental capacity”.  This precedent has been followed in three cases in 2016, Burns v Burns Elliott v Simmonds and Lloyd v Jones.

Problems with capacity, not necessarily amounting to a lack of testamentary capacity, can however support a claim of lack of knowledge and approval alongside other suspicious circumstances, usually physical frailties, obscurities on the face of the will (such as unusual spelling errors) and concerns over the influence of a beneficiary in the will preparation.

Again, it will be difficult to argue that a testator did not know and approve the contents of a professionally prepared will and therefore, although these claims are also on the rise and are a viable alternative to a testamentary capacity claim, it is not going to be an easy route for disgruntled family members looking to challenge the validity of a will. However, in Hawes v Burgess referred to above the judge found the will invalid on this basis (and here there was an experienced independent solicitor involved), and if the disgruntled family member can establish there are suspicious circumstances then the burden of proof will be shifted onto the party seeking to rely on the validity of the will to prove it.

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Get in touch

For more information on this story or to find out more about Lodders’ Private Client services, contact Laura Abbott on 01789 206167 or by email.