I think someone lacked capacity when they made their Will – what can I do?

6 January, 2017

A testator (being a person who makes a Will) must have testamentary capacity at the time the Will was made in order for that Will to be valid.

 

 

This means that they must

  • understand the nature of making a Will and its effects;
  • understand the extent of the property which they are disposing;
  • are able to comprehend and appreciate the claims to which they ought to give effect; and
  • not be suffering from a disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.

 

 

The level of understanding required by this test varies according to the complexity of the Will itself, the testator’s assets and any claims upon the testator.

If a testator did not have capacity at the time instructions to prepare the Will were given and when it was signed, it not be valid.

If the testator did have capacity at the time they gave instructions, but not when they sign the Will, the Will may still be valid if certain conditions are satisfied.

A Will made when the testator had capacity will remain valid if they subsequently lose capacity, provided they do not make changes to the Will after capacity has been lost.

If you are concerned about the validity of a Will you can challenging it. In the first instance, you can make enquiries of the solicitor who prepared the Will (see our blog post ‘Obtaining information about a disputed Will’) or consider entering a caveat to delay probate being granted (see our blog post https://www.crippspg.co.uk/will-disputes/caveats-what-why-and-how/)

Further help

If you need advice on challenging or defending a disputed Will on grounds of capacity, please contact Philip Youdan at philip.youdan@crippspg.co.uk.  For further information about Will disputes and disputes involving trusts and estates please click here to view our Guide to Will Trust and Estate Disputes.