Fixed Probate Fees, call:

0800 612 6105


Alternatively local rate:

020 8150 2010

Contesting A Will Due To Lack of Capacity

Anyone who is over the age of 18 and who is of ‘sound mind’ (that is, has sufficient mental capacity) may make a will. However, if someone believes that the testator was not of sound mind and therefore did not have the mental capacity to know what they were doing when they made their will, they may wish to contest it.

In fact, this reason for contesting a will is increasing, and it may have something to do with the number of people developing various forms of dementia. As people live longer, the chances of them developing a disease such as Alzheimer’s, for example, increases. It seems to follow, then, that there may be a case to contest some wills made be these people. However, it will all depend on when they made the will – before or after their diagnosis, for example.

It’s not just dementia that means someone has a lack of capacity. This problem could come from a head injury, substance abuse, other mental illnesses, or even other medical conditions. The way that it is determined whether someone has a lack of capacity or not goes back to Banks v Goodfellow in 1870. The story behind this is that the testator had been confined to an asylum, and when he was released he developed a severe fear that he was being followed everywhere he went. Despite this, he made a will (and managed his own financial affairs). When he died, the court determined that his will was valid because, although it was clear that he was suffering from some kind of mental illness, it had had no bearing upon the will itself. That is, if he had not had the illness, the will would have been the same.

In general, a court will assume that someone has the capacity to make their will unless they are otherwise informed – with evidence – that this was not the case. The burden of proof falls on the person who made the allegations, and the evidence that they need to supply includes statements about the testator’s general behaviour as well as how far the will strays from their usual behaviour in tone and the information within it, information from the solicitor who prepared the will (assuming there was one), statements from friends and family, and evidence from medical practitioners.

Leave a Reply

Your email address will not be published. Required fields are marked *

------------------------

Call us today on:

0800 612 6105

Or on local rate:

020 8150 2010

------------------------

Alternatively email:

admin@iwc-ltd.co.uk