As the population ages and the incidence of dementia and associated illnesses increases, grounds for challenging a will are also on the increase. According to NHS data, around one in eleven people over 65 now have the condition. At the same time, 390 probate disputes made their way to the High Court in the first nine months of 2023, more than double that for the same period in 2016.
Richard Bates of Rothera Bray’s Contentious Trust and Probate team looks at the essential issues in this topical blog.
The test for capacity
A case from over 150 years ago, Banks v Goodfellow, is still the test used by the courts to help determine if the maker of the testator has capacity. In that case the court said
A testator should:
- understand the nature and effect of making a Will;
- have an appreciation for the extent of their property;
- understand the moral claims they ought to consider; and
- not be suffering from any delusion or disorder of the mind that would affect the disposition of their estate.
Testamentary capacity therefore, requires proof of the capacity to understand these important matters. It is not a test of memory.
The last limb of the test is often relevant for testators suffering from some forms of dementia (although of course dementia can take many forms and vary in degree). It is equally applicable to those suffering from other ailments that affect cognition, including bi-polar disorder, UTIs, bereavement reactions and phobias. The delusion must be fixed but not necessarily unshakable.
Claims that a will is not valid
If a testator is found to lack capacity, the court will declare the will is invalid. In that case, the estate will be dealt with under any earlier will (provided the lack of capacity did not also affect that document) or if there are no valid wills, under the rules governing intestacy.
It is important that the person challenging the will checks how they will benefit if the challenged will is not valid.
How to prove lack of capacity
This can be tricky as the judgment has to be made posthumously. The starting point is often the file of any solicitor who prepared the will to see if they made an assessment or observation about capacity. The courts have said that the opinion of an experienced will-writer can be very good evidence to support capacity.
The testator’s medical records may also provide assistance, particularly where the testator was seen by a doctor around the time the will was made or if there is a clear diagnosis.
The evidence of the witnesses to the will and others who saw and observed the testator are also important.
If the medical evidence is inconclusive, it may be necessary for the person challenging the will to obtain the report of an expert doctor to see if they can provide an opinion as to whether the testator might have or lack capacity.
Burden of proof
Where the will is properly executed and rational on its face, there is a legal presumption that the testator had the relevant capacity. In that case, the burden of proving whether the testator lacked capacity lies with the person challenging the will.
The burden can shift in certain circumstances.
The standard of proof is the balance of probabilities. In other words, what is more likely than not to have happened.
Conclusion
Proving that a will is not valid for lack of capacity can be tricky and it is important to ensure that all of the evidence is explored.
If you want to challenge (or defend) the validity of a will, it is important to seek advice at the earliest opportunity. Our specialist team includes members of the Association of Contentious Trust and Probate litigation Specialists (ACTAPS) who have a wealth of experience in helping clients with all manner of contentious probate disputes.
If you need any advice about challenging a will, please get in touch with our experienced Contentious Probate & Trust team on 03456 465 465 or email enquiries@rotherabray.co.uk.
