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01st May 2020

How can I investigate the Deceased's testamentary capacity to make a Will?.

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Following an individual’s passing, it is not uncommon for the contents of their Will to fail to meet the expectations of their beneficiaries, or other family members. One of the most common enquiries we receive, are from disappointed individuals, who believe that the deceased lacked the required mental capacity (known as testamentary capacity) to make their last Will.

Testamentary capacity is one of a few limited grounds upon which a Will can be challenged. Testamentary capacity is the legal term used to describe a person’s legal and mental ability to make or alter a valid Will.

What is the test for testamentary capacity?

The test for testamentary capacity was established by the case of Banks vs. Goodfellow (1870), which is still good law. In accordance with Banks vs. Goodfellow, for a testator to have testamentary capacity: -

The testator (the individual who made the Will) must be able:

1. To understand that he is making a Will and when the Will will come into effect; and
2. To understand the extent of the property of which he is disposing; and

3. To comprehend and appreciate the claims to which he ought to give effect; and

4. He must not be subject to any disorder of the mind as shall ‘poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties’, in disposing of his property by a Will.
          Proving lack of testamentary capacity

          If the testator was believed to have had some form of memory impairment, for example, as a result of a diagnosis of dementia, stroke, or accident, which may have impaired their ability to give instructions for a Will, then the merits of a Will challenge in reliance upon this ground may warrant further investigation.

          It is important to realise that the testator may have had capacity to make some decisions but not others. Just because the testator may have suffered from an illness such as dementia, does not automatically mean that they would have lacked testamentary capacity to make a valid Will. There are varying degrees of memory impairment and capacity can fluctuate over time.

          Capacity is time and decision specific. The question is whether at the time the testator gave instructions for their Will, did they have the requisite testamentary capacity to be making a Will.

          Proving retrospectively that someone did not have testamentary capacity at the time they gave instructions for their Will, can be difficult. To bring such a claim successfully, medical evidence will need to be obtained which supports your claim that the testator lacked capacity, together with contemporaneous witness accounts from those who are able to comment as to the testator’s state of mind at the relevant time.

          If the Will has been drawn up by an experienced solicitor, it is likely to be more difficult to succeed in a challenge to the validity of the Will on the basis of a lack of testamentary capacity, however this will depend on the quality and content of the file notes of the solicitor who prepared the Will.

          Initial investigatory steps

          If there is a genuine concern as to testamentary capacity and a grant of probate has not yet been issued in the Deceased’s estate to their appointed personal representative, then you may wish to consider registering a caveat at the probate registry. A caveat once entered will stop a grant of probate from being issued and therefore delay the distribution of the estate as per the Will. Such a step will buy you some time to investigate testamentary capacity further. Please see our earlier article on caveats for further details.

          If the Will was professionally prepared, then the next step would be to make a Larke v Nugus enquiry (forthcoming article), of the solicitors who prepared the Will, into the circumstances surrounding the preparation and execution of the same. Such an enquiry can be very useful in ascertaining what steps were taken by the solicitor to satisfy themselves that the testator had testamentary capacity at the relevant time.

          An Access to Records Request can be made to the Deceased’s GP, treating hospital, outpatient memory clinic etc, for release of the Deceased’s medical records for the relevant period only, under the Access to Health Records Act 1990.

          Witness statements ought to be obtained from those individuals (such as family, friends, neighbours, witnesses to the Will), who are able to comment as to the testator’s behaviour and state of mind at the relevant time.

          The above, are all investigations that our specialist solicitors at Hewitsons can assist you with. We know who the relevant people are to approach, the specific questions to ask and the information to look out for.

          Get in touch

          For more information about testamentary capacity, or any other ground for contesting a Will, please get in touch with Hewitsons today, or call 0330 311 0885. A member of our team will be happy to arrange a free 30-minute consultation between you and one of our experienced solicitors to discuss the options available to you.