A person making a will must have the mental capacity to make it. In other words they must be able to comprehend the extent of their estate and they must be aware of the people who they would usually be expected to provide for (even if they choose not to). They must also be free from any delusion of the mind that would cause them reason not to benefit those people. These principals were first established in a very old case called Banks v Goodfellow in 1870. The judgement in this case used alongside the Mental Capacity Act 2005, still holds fast today.
Will disputes citing lack of mental capacity are now more frequent, as more people are making their Wills later in life and so could be suffering from some form of dementia. This has resulted in the court establishing something known as the "Golden Rule", which provides guidance to solicitors when preparing Wills for vulnerable or elderly people. The case of Re Simpson [1977] states that there is one Golden Rule to be observed - however straightforward the will and however tactless the suggestion, ‘the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings.’
One of the most important parts of a Will writer's job is to assess a client’s mental capacity and be sure they meet with the requirements of creating a valid will. However, it is not surprising that informing a client that there may be concerns regarding their mental facilities is never easy. The burden of determining whether a client has testamentary capacity to make a will is crucial in the preparation of every will. Routh Clarke always take the necessary steps to ensure a Will is valid, even if this means some difficult discussions are needed.
If you wish to challenge a Will, because of lack of mental capacity, we suggest contacting a Solicitor, such as Routh Clarke, as it is not an easy process. The burden of proof lies with the contester to prove the deceased did not have mental capacity at the time they signed the Will and this will undoubtedly need the testimony of a medical professional, such as the deceased’s GP. Good solicitors, when making Wills for elderly or vulnerable adults will follow the Golden Rule and have a medical professional give witness to the Will maker’s mental capacity when signing the Will. However, this is not always the case, so it is possible to show a Will is invalid, if the accompanying evidence shows that the deceased failed to understand the terms of the Will.
If you are in this situation and would like to speak to someone who understands this area of law, give us a call for a non-obligatory discussion and we’re sure we can help you work out your next steps.
See our other pages on Contesting Wills