A person making a will must fulfil the test for testamentary capacity, in that they must:

1. 1. Understand the nature of making a will and its effects;
2. 2. Understand and appreciate the claims to which they ought to give effect;
3. 3. Understand the extent of the property being disposed to the beneficiaries; and
4. 4. Have no mental disorder that prevents their sense of right in disposing of their property by will

This test was then taken further by Lord Templeman in the case of Banks v Goodfellow (1870). The guidance set down by him was that, for an elderly person making a will, or someone with a serious illness or disability, the making of their will should be independently witnessed and approved by a practitioner in this field. That practitioner will then satisfy themselves, based on their experience, that the person making the will had capacity to make it in the manner they have. 

If the will maker is not independently advised, and assessed for testamentary capacity, probate claims can ensue. For example, one might argue that the maker of the will was unduly influenced by another into providing a benefit, or that they did not understand what making a will provides to any named beneficiaries.

The ongoing lockdown caused by Covid-19 has and will continue to present a challenge to assessing whether a person making a will has capacity, and is not being coerced by another. Even if the capacity assessment is made over a video conference, how can a practitioner be sure that the will maker is alone? It is very difficult to assess whether a person fulfils the test above, unless they are face-to-face physically with the practitioner.

Although the lockdown is slowly being lifted, perhaps we will see an influx of will disputes and contentious probate claims in the future, based on a lack of assessment as to testamentary capacity due to the lockdown.

If you would like information about disputing a will, probate disputes or inheritance disputes, please call 01902 424927 and ask to speak to one of our specialist contentious probate lawyers. Alternatively, please 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.

We have a dedicated practice team of contentious probate solicitors, covering all areas of the UK (with offices near Birmingham and in Wolverhampton) who are experienced in dealing with all types of contentious probate matters, including challenging a will and estate disputes.

We also have a team of probate lawyers who can assist if you wish to review you current will or to make a will for the first time.

We offer a free initial free telephone consultation for contentious probate disputes and we can sometimes act for clients who want to contest a will or commence an inheritance dispute/probate dispute on a no win no fee basis.