Testamentary Capacity

One of the essential requirements for a Will to be valid is that the person making it (the testator) must have testamentary capacity. This means that the testator must have sufficient mental capacity to make a Will. If a Will is rational on its face, and correctly signed in front of witnesses, it will be presumed that the testator had testamentary capacity. In these circumstances anyone disputing the Will on capacity grounds will need to show that the testator did not have testamentary capacity.

The test for whether an individual has the testamentary capacity to carry out a particular action is task specific. This means that the requirements can differ, depending on the action being considered, with more complicated tasks requiring a higher level of capacity.

To have testamentary capacity a testator must understand:

• the nature of a Will and its effects,
• the extent of his or her property, and
• the moral obligations that he or she ought to consider. This includes distinguishing between individuals and reaching a moral judgment, such as whether one child should be preferred over other children, because they are less well provided for, more deserving, or in need of greater financial assistance due to family responsibilities or their state of health;
• 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.

It is not necessary that the testator remembers details without prompting. Similarly, capacity does not require understanding of the collateral consequences of making a Will.When it comes to making a Will the test for capacity should be based on the balance of probabilities. In other words, is it more likely that the individual is capable or incapable?  The person undertaking the test, typically the individual’s GP or consultant or another medical professional, does not need to be satisfied ‘beyond reasonable doubt’.

Medical evidence can be crucial in establishing capacity. The so-called “golden rule” for practitioners is that, in preparing a Will for a very elderly or seriously ill testator, contemporaneous, written medical evidence as to capacity should be obtained, so it can be produced if any later claim as to lack of capacity is made. Although, in one case it was stated that strong evidence of incapacity would be required, when an experienced solicitor had formed the opinion that the testator had capacity and had recorded this contemporaneously in writing.

If the individual is deemed as not having mental capacity at the time, they made their Will it will be invalid and either their previous Will determine the distribution of their estate or, if they do not have a previous Will, the rules of intestacy will decide how their estate is divided.

Many contentious probate cases involve allegations that a testator did not have testamentary capacity, often twinned with allegations that the testator did not know and approve of the Will’s contents, which is another vital component for a valid Will.