Mental capacity

A will can be successfully challenged if it is found that the person making the will “lacks mental capacity”.  There is no strict legal definition laid down about what “mental capacity” means.  It does not follow the same rules as the Mental Capacity Act 2005.

The closest thing we have is from a case Banks v Goodfellow that:

  • You know you’re making a will;
  • You know what you own (generally – i.e. rough overview of property, investments, cash etc);
  • You know who would expect to inherit from you; and
  • You aren’t suffering a “disorder of the mind or insane delusions”.

As you can appreciate the above definition leaves a lot of room for interpretation by a judge and therefore challenge.  A challenge to your will can cause stress, upset and expense to those you leave behind.  If you are in any doubt you should do what you are able to mitigate the chance of your will being challenged.

Your Executors and Beneficiaries need to prove that:

  • You know what you’re doing when you make your will i.e. “Testamentary Capacity” and
  • You remember the instructions you give and confirm the will has been completed in accordance with your wishes.

These rules are taken from the case Parker v Felgate.

If you believe you may be suffering from e.g. dementia, if you are on strong medication, or if you are very unwell you should consider speaking with a solicitor directly. You should do this even though you may be perfectly lucid when making and executing your will.  Seeing a traditional solicitor will leave a different evidence trail than an online will. This can mitigate the chance of a successful challenge to your will.

If you have to proceed using our service you should absolutely follow the “Golden Rule” (set out in Kenward v Adams).  This says that:

“…in the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding…”

You should also ensure that anyone looking at your estate and wishes knows that you were not lacking in mental capacity by recording or writing some evidence that shows you had the comprehension and understanding to pass the tests in Banks v Goodfellow and Parker v Felgate when you made and executed the will.

If in doubt at any stage please contact us.