The testamentary capacity of the testator at the time of making the will plays an important role in determining whether the testator’s will is valid or not.

For a will to be valid, the following factors have to present:

  • Made by one who is 18 years old or over
  • Made in writing;
  • Signed by the testator (the one who made the will) or signed on his or her behalf, in his or her presence and direction;
  • Signed in the presence of two witnesses who signed the last will in the presence of the testator; and
  • Testator had testamentary capacity at the time the will was made.

Testators can dispose (even in a capricious way) their estates subject to the Inheritance (Provision for Family and Dependants) Act 1975 and subject to the Banks v Goodfellow test and to the Mental Capacity Act 2005 test.

Banks v Goodfellow

The case of Banks v Goodfellow, which was decided in 1870, is the leading authority on what constitutes a testamentary capacity. In this 1870 case, the testator’s testamentary capacity is tested based on the following criteria:

  • Whether the testator understood the nature of the act of making a will and its effects at the time the will was made;
  • Whether the testator understood the extent of the property of which he is disposing;
  • Whether the testator understood and appreciated who will benefit or who will be excluded from his or her will; and
  • Whether at the time the will was made no person or persons attempted to “poison his affections, pervert his sense of right or prevent the exercise of his natural faculties”, and whether the testator had “no insane delusions”.

Mental Capacity Act 2005

The Mental Capacity Act 2005 further defines those who lack the testamentary capacity. Under this 2005 law, a person is considered to have no capacity if at the time the person made the will he or she was not able to make a decision for himself or herself due to the impairment or disturbance in the functioning of the mind or brain. The law does not distinguish whether the disturbance or impairment is permanent or temporary. The law also specifies that lack of capacity cannot be proven by mere reference to the appearance or age of the person; or the aspect of the person’s behavior that would lead others to make unjustified assumptions.

How to prove that the deceased at the time of making the will lacked the required testamentary capacity?
As expressly provided under the Mental Capacity Act 2005, the testator’s testamentary capacity cannot be proven merely by his or her age, appearance or behavior – those that warrant unjustifiable assumptions.

If you want to establish that the testator lack the required testamentary capacity at the time the will was made, you have to show proof of the following:

  • Evidence that the testator did not understand the nature and effect of making a will;
  • Evidence that the testator did not understand the extent of his or her estate;
  • Evidence that the testator had no comprehension of who will benefit or who will be excluded from his or her will;
  • Evidence of undue influence;
  • Evidence that the testator had a mental illness that influenced his or her will-making;
  • Evidence that the testator could not make a decision at the time the will was made due to the impairment or disturbance of his or her mind or brain.

Entering a Caveat

If you want to officially question the lack of testamentary capacity of the deceased, you can do so in a process called “entering a caveat”.

A caveat can be entered when a grant of representation (known as grant of probate in England, Wales and Northern Ireland and known as grant of confirmation in Scotland) has been filed.

The executor or executors named under the will are the ones who can file this grant of representation. If a grant of probate or confirmation is issued to these executors, they will have a legal right to collect the assets of the deceased, pay the deceased’s debts and distribute the estate to the beneficiaries. These beneficiaries may not include you.

If you have an interest to the estate or your interest is different from the grant of representation applicant, you may enter a caveat. This caveat has the effect of stopping the grant application.

One of the valid grounds for entering a caveat is the claim that the deceased lacked the required testamentary capacity at the time the will was made.

If you file a caveat, the grant applicant may approach you to reach an agreement or compromise. You then have the option to enter or to not enter into agreement with the grant applicant. This caveat may be removed in case of a compromise.

If you refuse to enter into an agreement with the grant applicant, the applicant can file to the High Court an application for the removal of your caveat. This is the part where things become complicated. It is advisable for you to seek the assistance of a solicitor at this point.

If the court decides in your favor, this has the effect of stopping the issuance of a grant of representation to the applicant.

However, if the grant applicant succeeds in removing your caveat, that is, the court’s verdict favors the applicant, there is a big possibility that you will pay not only your own legal cost but also for the legal cost of your opponent – the grant applicant.

As there is a possibility of shouldering not only your legal cost but the legal cost of your opponent as well, there is a need to seek the assistance of solicitors who have the experience and deep knowledge in successfully proving the lack of testamentary capacity of testators.

If you want to prove a deceased person’s lack of testamentary capacity, contact the solicitors at HH Legal.

Expert Solicitors in Contested Probate & Contesting Wills

HH Legal is a specialist firm of solicitors located in Shrewsbury, Shropshire, offering expert advice on a range of complicated legal areas, including contested probate, bullying and harassment and contract law. If you would like to contest a will please contact us by email on telephone 0800 989 0090

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