Contesting a will: Capacity

One of the most common reasons a will is challenged is when there are doubts about whether the testator (the person making the will) had the mental capacity to make it, or whether they fully understood and approved the document. These issues are often at the heart of inheritance disputes, particularly where a will has been made or changed late in life or during a period of illness.

For a will to be valid, the testator must have what is known as testamentary capacity. This means they must be able to understand the nature of making a will, the extent of their estate, and the potential claims of those who might expect to inherit. Alongside this, they must also have the necessary knowledge and approval of the contents of the will. If these legal requirements are not met, the will can be open to challenge.

In this blog, our Wills, Probate and Estate Planning solicitors explore the key principles surrounding capacity, knowledge and approval. We also outline what these issues can mean in practice and how they can lead to contentious probate or inheritance disputes.

What is capacity?

Capacity, when used in reference to contesting a will, refers to the ability of an individual to write and understand a will for the distribution of their own estate. In order for somebody to have the necessary capacity, they must understand:

1. What it means to make a will and the effect that it has on them and their beneficiaries,
2. The extent of the property that they are giving out,
3. The nature of any claims upon them (i.e. any persons who may be entitled to claim against their estate; and
4. The testator must not be suffering from any disorder of the mind which “shall poison his affections, pervert his sense of right, or his will in disposing of his property”.

There is a presumption of the testator’s capacity if the will is rational and there are no irregularities. If you believe that your loved one was lacking capacity when they made their will, you may be able to contest it on the grounds of lacking mental capacity.

What is the required knowledge and approval?

Once it has been established that a testator had the necessary mental capacity, there is usually a rebuttable presumption that they also understood the contents of the will and approved it. In other words, unless there is evidence to the contrary, the law assumes the testator knew what they were signing.

However, this presumption does not automatically apply in certain situations where additional risks of misunderstanding are present. For example, if the testator is blind, illiterate, or physically unable to sign the will themselves (and another person signs on their behalf), the courts require stronger safeguards.

In these circumstances, the attestation clause—the part of the will where the witnesses confirm the testator’s signature—must be drafted with particular care.

It should set out clearly how the will was explained to the testator, and confirm that they understood its contents before signing or directing someone else to sign for them. This additional step provides reassurance that the testator genuinely had knowledge of and approved the Will, helping to reduce the likelihood of challenges later on.

What kind of evidence is needed to challenge a will on capacity grounds?

To challenge a will on grounds of lacking mental capacity, you will need to be able to prove that the creator of the will was lacking capacity to fully understand the will they were creating or signing. Proving this requires evidence, which could include:

• Medical records, attesting to the deceased’s history for diagnoses conditions affecting their mental condition, such as dementia or Alzheimer’s,
• Witness statements and testimonies from individuals who knew or treated the individual and can attest to their condition,
• Expert medical opinions which can provide crucial professional insights, and;
• Other documentation, which could include solicitors records from the drafting of the will, or other key paperwork that offers insight into the testator’s condition.

The evidence needed to contest a will due to a lack of capacity will directly concern the mental condition of the deceased, which we understand can be an emotionally challenging subject. Our solicitors take a sensitive approach to contesting a will due to dementia, Alzheimer’s, or other mental conditions, preserving the dignity of the afflicted individual whilst ensuring that their wishes are accurately represented.

What happens if a later will is discovered or the previous will has been revoked?

If a newer will comes to light after a Grant of Probate has already been issued, the Grant will usually need to be revoked. This is because the will used in the original application is no longer valid — it would have been revoked by the later will.

Executors must take great care to ensure they are applying with the true last will and testament, as relying on an outdated or invalid will can result in lengthy legal processes, delays, and increased costs.

What are the possible outcomes if a testator is found to lack testamentary capacity?

If grounds for contesting a will were established through proven lack of testamentary capacity, then there are five key outcomes that you could expect to happen. These include:

1. The will is declared invalid, which is the most common outcome, as the court will typically rule the will to be invalid if mental incapacity is proven. Whether the testator was found to not understand that they were making a will, be unable to comprehend their own estate, or failed to recognise the claims of other potential beneficiaries, there is a chance the will could be deemed invalid.
2. The estate may be distributed under intestacy rules, which means that the estate is distributed under rules that the beneficiaries and testator have no say in.
3. An earlier, valid will is consulted, meaning that if the invalid will is dismissed, the court may revert to the most recent valid will and distribute the estate accordingly.
4. The will may be found partially invalid. Although rare, the court may find the will to be partially invalid, meaning that they will dismiss only part of the instructions or provisions. Likewise, they may choose to only uphold certain sections, although this is equally rare an outcome.
5. Further claims or disputes could occur. Beneficiaries may choose to bring a claim under The Inheritance (Provision for Family and Dependants) Act 1975, or under propriety estoppel.

But I don’t think my loved one had capacity; they were suffering from dementia

Just because a testator is suffering from dementia, it does not necessarily mean that they lack capacity. However, the severity of the condition will need to be considered, and so medical evidence should be obtained before executing the will to provide evidence of capacity.

If you are worried that a will has been executed when you think the testator did not have the capacity, you will need to act quickly. Levi Solicitors always recommend that you seek advice as soon as possible, preferably before the grant of probate has been granted, as it is possible to enter a caveat at the Land Registry to prevent a grant of probate being taken out by any executors.

If you would like to discuss contesting a will on capacity grounds, please do not hesitate to contact Levi’s expert solicitors online or on 0800 988 7756.