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Published On: September 20, 2021 | Blog | 0 comments

What does it mean to make a Will of sound mind? And how can I dispute a Will for lack of capacity?

The key requirements for a will to be valid in England and Wales include that it:

  1. Be in writing;
  2. Is made by a person over 18 years of age (unless exemptions apply);
  3. Meets the formalities of signing and witnessing;
  4. Is made voluntarily with understanding of the document and free from outside influence or fraud; and
  5. That the person making the will (“the testator”) has the required capacity to do so (often referred to as being of sound mind).

The test for testamentary capacity to make a will is set down in case law, particularly the seminal matter of Banks v Goodfellow [1870] LR 5 QB. The judgment in this case sets out the test for capacity to make a will as follows:

  • The testator should understand their act in making the will and the effect of the will;
  • They should understand what property they have and which is being dealt with/disposed of under the will;
  • They need to appreciate the claims that may relate to their estate and who they will be giving gifts/inheritances to; and
  • They should not be suffering from a disorder of the mind that would impact their ability to make decisions or understand the will and its impacts.

The test applies to the capacity of the testator at the time they are making the will and so evidence from that time will be necessary in a dispute over the validity of the will. Some mental health issues can mean that capacity fluctuates, and this makes medical evidence even more important.

Sometimes the best available evidence for capacity in making the will comes from the solicitor or will drafter who prepared the document. The person who prepares the will should keep clear notes of the discussions they have with the testator, the instructions the testator gives for drafting the will, as well as their considerations on capacity and other factors for the will to be valid as listed above. In a will validity dispute, this documentary evidence can be obtained by making a Larke v Nugus request, which you can read more about here.

In cases where the testator has known health conditions, is frail/elderly or vulnerable, it is also best practice for the will drafter to arrange for a medical report to be prepared on capacity. The practice for this to be done is referred to as The Golden Rule, and you can read more about the Rule here. This medical evidence can be very useful in supporting the validity of a will, but is not necessarily determinative.

If a will appears rational on its face, then there is a presumption that the testator will have had capacity to make that will. It is for the person alleging the testator lacked capacity to raise a dispute and evidence casting doubt on the capacity, at which point the person trying to uphold the will would need to prove the capacity of the testator.

Disputes over capacity and validity of a will can be very complex and so seeking early specialist advice is always best. You can contact our team to discuss your case and how to either dispute or defend a will.

Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

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3 thoughts on “What does it mean to make a Will of sound mind? And how can I dispute a Will for lack of capacity?

  1. Hi
    My father had dementia alzheimers did not understand
    The company could not get a clear audio
    They got a forged sufio to pass their own compliance check appointing themselves as executor
    Now woman says she did not know it was not him
    They trying to take 100,000 in solicitor fees
    They desperate for probate my caveat is permanent
    How can I stop them

    1. Hi Ash, thanks for your comment. A member of the team will get in touch with you shortly to see if we are able to help. Kind Regards

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