Challenging wills where the testator may have lost capacity
In certain circumstances, it is possible to have a will declared invalid by a Court. BRM Dispute Resolution Director Lewis Hastie shares his expert insights into challenging wills where the testator may have lost capacity.
One of the bases on which the validity of a will may be challenged arises is if it can be proven that the person who made the will (the testator) lacked “testamentary capacity” at the time.
It is not uncommon for people to make a will later in life, or when they have been diagnosed with a life-threatening illness. This can open the door to a possible challenge from a close relative or someone else who expected to inherit from the Deceased and did not.
The two starting principles are that capacity is a time and decision-specific concept, and a person is presumed to have capacity unless proven otherwise. For example, it is possible for someone to have the capacity to make decisions about where they should live and who they should spend time with, but not to make big financial decisions.
When it comes to wills, the 1870 decision in Banks v Goodfellow established the specific four-part test for “testamentary capacity” which provides that the testator has capacity if they:
- Understand the act of making a will and the effects of doing so;
- Understand and appreciate the extent of their estate which they are “disposing of” in the will;
- Appreciate any claims that close relatives and friends may have against their estate; and
- Are free of any “disorder of the mind” which will impair or influence the above factors.
Solicitors and will writers do have a responsibility to ensure that when they receive instructions to make a new will, they take steps to satisfy themselves that the testator has capacity.
Ordinarily, they are expected to apply the “golden rule”, established in the historic case of Kenward v Adams which provides that where the testator is elderly or has been ill, the will should be witnessed or approved by a medical practitioner qualified to assess capacity.
Ordinarily, the minimum requirement is for the will writer to ask the testator to obtain a capacity report from their GP before the will is executed. If the golden rule is not followed, it does not mean the will is invalid, but it does render the will more vulnerable to a claim.
Sometimes it is not enough simply to seek a GP’s report if the testator is exhibiting specific symptoms. In Boast v Ballardi & Others [2022] EWHC 1533 (Ch), a firm of solicitors was criticised for failing to sufficiently investigate concerns over a testator’s capacity.
The client in this case was exhibiting paranoid delusions which directly fed into his decision to make a new will excluding certain individuals. However, this is not to be conflated with making an unwise decision – the Mental Capacity Act 2005 provides that an individual does not lack capacity because their judgment is poor or questionable.
If you believe that a will could be invalid owing to the testator lacking capacity, you still have the burden of proving this to be the case. The steps that a claimant usually needs to take to go about proving their claim are:
- Seeking the release of the solicitor’s or will writer’s file and notes to see whether the will drafted met the client, whether the instructions given were rational and whether enquiries were made about capacity;
- Obtaining the Deceased’s medical records and looking for evidence of any condition they were suffering from;
- Putting the medical records before an expert psychiatrist who may be able to give a retrospective capacity report; and
- Obtaining accounts from witnesses who knew the Deceased at around the time and can report on his/her state of health.
Some or all of the above can be enough for a will to be successfully challenged on the basis of incapacity, and the result will be that any previous will made by the testator will become valid, or if there was none, the rules of intestacy (automatic inheritance) will apply.
For guidance around challenging a will that may have been declared invalid. Contact Lewis on lewis.hastie@brmlaw.co.ukor 0114 698 7468.
