Challenging a Will (Questions of Capacity)

Posted by Cathryn Culverhouse on
Fears that a vulnerable or elderly loved one may be exploited for their wealth is not a new concern. High house prices and complex family structures give rise to difficult decisions about who should inherit from an individual's estate. Individuals who expect to inherit, but do not, often want answers to questions about the decision making process, sometimes just for their own peace of mind. But when those answers lead to doubt as to the testator's ability to make a Will at all, this may lead to a claim that the testator did not have testamentary capacity to make a Will.

In order for a lifetime gift or Will to be valid, the individual making the gift or Will must have had the requisite capacity to make that decision. Whether or not someone had capacity depends on the type of decision they made: a person may have sufficient capacity to undertake some decisions (eg to make a modest birthday gift of £100) but not others (eg give away their home).

In order to establish whether a person making a Will had capacity to do so, the testator must:

  • understand the nature of what he/she is doing (ie making a Will), and what the effects of this will be
  • understand and recollect the extent of his/her assets which he/she is disposing of by that Will
  • understand and appreciate the potential claims of family members, friends and/or third parties upon his/her estate
  • have no mental disorder which influences the disposition of his/her property.

An individual's capacity may vary day to day. What sort of issues may impair an individual's capacity?

  • medication
  • illness, such as dementia
  • grief following a loved one's death (where the individual is devastated, rather than merely upset, by the death)
  • delusional disorders.

A poor memory does not necessarily mean that someone did not have capacity to execute a Will.

It can be difficult to challenge the validity of a Will for lack of testamentary capacity because evidence is required to show the testator's mental state at the time of making the Will. Contemporaneous evidence is rarely available. The primary witness is the deceased, who is clearly unable to assist the court.

It is usually appropriate to instruct a psychiatrist to provide evidence after the event as to whether or not the deceased had capacity to make the Will at the relevant time. Medical records are therefore crucial.

A properly executed Will is valid until proven otherwise. A challenge to a Will must raise a genuine suspicion that the testator lacked capacity. If a genuine suspicion is raised, the burden passes back to those seeking to prove the Will is valid, to establish that the testator did have capacity.

Challenging a Will is a demanding task, not only in terms of cost, but also in time and emotional effort. It is important to seek legal advice as soon as possible as to steps which might be taken to "hold" the position until investigations can be made (eg entering a caveat) and to place the executors on notice of a potential claim before they obtain a grant of representation and distribute estate assets. 

About the Author

Cathryn is a solicitor currently seated in the Commercial Litigation team, based in Oxford.

Cathryn Culverhouse
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