When someone (a testator) makes a will, they must have mental capacity to do so.The reading of the will may provoke disappointment if expectations of those hoping to inherit aren't met. This may beg the question of the testator: What were they thinking?

Perhaps they weren't thinking; at least not properly. Illness, infirmness or even old age at the time the will was made may warrant investigation into their mental condition during that time; because if the testator lacked testamentary capacity, a court may revoke the entire will.

What is testamentary capacity?

It's the measure of mental capability the law requires a testator to have in order to make a valid will.

How is testamentary capacity measured?

A testator lacks testamentary capacity if they:

• do not understand the nature of their act and its effects; and the extent of the property being disposed; or,
• do not comprehend or appreciate the reasonable expectations of others which they reasonably ought to satisfy; or,
• suffer a disorder of the mind which poisons their affections, perverts their sense of right, influences their will in disposing of their property and brings about a disposal of it which, if their mind had been sound, would not have been made

Unfortunately, the testator will no longer be available to explain their actions and the decisions they made. Instead, the court will rely on retrospective evidence provided by independent medical experts to help determine the above issues.

When must the testator have testamentary capacity?

The testator must have had testamentary capacity when they gave instructions to their solicitor to prepare the will.

If the testator lacked testamentary capacity when the will was signed, it may still be valid as long as the testator had testamentary capacity when the instructions were given; as this is the critical time when the actual contents of the will are formed. 

Mental Capacity Act 2005

The Act was not brought in to redefine testamentary capacity. It does however add to the law by placing importance on the decision making capability of the individual under scrutiny.  If there are doubts about an individual's ability to make a decision in a rational way, there should be doubts about that person's mental capacity.

In a recent case, a testator was found to lack testamentary capacity based on decision- making incapability alone; despite there being no failings under the above criteria (1-3).

A practical point to note

Once a will is revoked, the court won't go on to distribute the testator's estate as it sees fit.  Instead, the estate will be distributed in accordance with any known preceding will; or if there is none, with the Rules of Intestacy.

A will should not be challenged, therefore, without careful consideration as to whether or not revoking the will puts the challenger in a better position.

What next?

If a will hasn't matched your expectations and you suspect the testator may have lacked testamentary capacity, you should investigate a claim without delay.

For an initial free consultation, please call our helpline on 03700 86 86 86 or contact us online.

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All documents should be read and used in accordance with the terms and conditions. This document is for your general information only and is not a detailed statement of the law. It is provided to you free of charge and should not be used as a substitute for specific legal advice. If you require specific legal advice please contact our helpline on 03700 86 86 86.