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Lack of Capacity - Contesting a Will

This is the most common basis of any challenge to a Will. The law is based upon a case decided in 1870.  In it the judge has set down a four fold test. 

The testator (the person making the Will) had to:

  1. Understand the nature of the Act and its effects – in other words that he was making the Will and what it was for and what it would do on his death.
  2. Understand the extent of the property of which he was disposing – know what he had to leave – not to the last penny but a reasonable idea.  The degree of knowledge required varies depending on the facts of each case.
  3. Be able to comprehend and appreciate the claims to which he ought to give effect – know who he might be expected to leave his money to, not that he has to leave it to them, just that he must be aware of those who have claims on him, who he would usually be expected to leave his estate to, such as a husband leaving his estate to his wife and children. 
  4. Show that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal which if the mind had been sound would not have been made.  In other words show that he was not suffering from an illness or disease which meant he left his money to people who would not otherwise have benefited if he had not been suffering from that illness or disease. 

Often these days testators will be suffering from illnesses brought on by old age such as dementia and that will be used as a basis to challenge the validity of the Will. However, by itself, a diagnosis of dementia does not mean a Will is automatically invalid.  The test is whether, as a result of the illness, the testator fails one or more of the tests, as set out above.  There are plenty of cases where testators have been found to have been suffering from dementia but still to have been able to give satisfactory instructions for a valid Will. 

This is a complex and expanding area and challenges against Wills to prevent them being admitted to Probate are being brought and settled on this test every day. For more advice on the circumstances of your particular case please do not hesitate to contact us.