With an ageing population comes an increase of debilitating conditions such as Alzheimer's disease and dementia as people’s bodies outlive their minds. This means that will disputes which centre around the testator’s mental capacity are on the rise.

In addition to age related conditions, other mental illnesses such as depression, psychosis, and personality disorders may mean that a testator does not have capacity to make a will. Other factors that could have a bearing on capacity are alcoholism, drug use as well as grief.

When can a will be challenged on the grounds of lack of capacity?

A will is invalid if the person who made the will (the testator) lacked the necessary capacity at the time that the will was drafted and signed.  This can give rise to family members or other interested parties contesting the will and challenging its validity.

The testator must have been of ‘sound disposing mind’ (consisting of the three elements of mind, memory and understanding) at the time when the Will is prepared and when the Will is executed. 

The legal test for testamentary capacity is set out in the common law test established by the case of Banks v Goodfellow. 

In order to make a valid will, the testator must

• Understand the nature of making a will and its effects;
• Understand the extend of the property of which they are disposing;
• Be able to comprehend and appreciate the claims to which they ought to give effect; and
• Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will. 

Generally, where a will that looks ‘rational’ on the face of it, there is a presumption that the testator had capacity to make it.  However, this presumption is rebuttable. This means that if the testator's capacity is contested, the party alleging that the testator lacked mental capacity will need to prove it. A contentious probate lawyer can assist you with this.

If you believe that you have grounds to challenge a will due to the testator lacking mental capacity or otherwise, or if you wish to discuss a probate dispute or inheritance dispute, please call 01384 410410 and ask to speak to Liam Owen or Susan Ford. Alternatively, you can e-mail us at contentiousprobate@georgegreen.co.uk providing a brief summary of the issues you wish to discuss with us, along with your contact details and we will contact you if we think we may be able to help.