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To have capacity or not have capacity - that is the question

View profile for Emma Savage
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Mental Capacity - why this is important when assessing a will

There are a number of grounds under which a will can be challenged.  One of these grounds is that the person making the will lacked the necessary mental capacity to do so.

With people generally living longer the number of people diagnosed with diseases likely to impact upon their mental capacity such as dementia is expected to continue to rise.  This may lead others to question whether the wills created by such persons are actually valid.

When a person makes a will they must at the time have the capacity to do so.  The test for whether a person has the mental capacity to make a will was confirmed in the case of Banks v Goodfellow (1870). 

Under Banks v Goodfellow the person creating the will must:

  1. understand what they are doing;
  2. understand the extent of the property which they are giving away in the will;
  3. be aware of the persons for whom they would usually be expected to provide, even if they choose not to; and
  4. be free from any delusion of the mind that would cause them reason not to benefit those people.

If someone fails this test then their will could be found to be invalid.  If so, that person’s estate would then pass under either any previous valid will, or the rules of intestacy.

If a will is rational on the face of it and has been signed and witnessed in the appropriate manner then it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding.  It therefore important to consider why you believe a person lacked capacity and any evidence you may have to support the same.

If you have grounds to suspect that a will may have been made by someone who lacked capacity it is important to take action and seek advice as soon as possible.  Our team can assist you with this or any other dispute relating to wills and trusts.

You may also wish to enter what is known as a Caveat with your local Probate Registry.  Should you be consider a Caveat further then our article discussing entering a Caveat may also be of assistance to you.