Testamentary Capacity - When is a Will Not Valid?


In England and Wales, when the strict rules and guidelines for making a Will are not followed, a Will is not legal and can’t be used to apply for Probate. Sometimes, even simple mistakes can make a Will invalid.

One of the reasons that a Will could be invalidated is that the writer did not have Testamentary Capacity when the Will was drafted.

What is Testamentary Capacity?

A person’s ability and legal capacity to understand what creating or making a change to their Will is. If they can’t prove that they have Testamentary Capacity, any changes they make to their Will would be disregarded.

The law defines Testamentary Capacity as:

  • The person understands the effects making a Will has
  • They understand the extent of what they’re giving away in their Will
  • They understand who they are giving the property away to

The Solicitor who attends the Will writing needs to make a judgement about their client. If they are worried, a medical professional should be asked to advise on the client’s Testamentary Capacity.

A Will could be questioned for Testamentary Capacity because:

  • It doesn’t benefit the people who it is expected to provide for
  • It contradicts an earlier version of the Will
  • There are worries that it doesn’t represent the true wishes of your loved one
  • You know that the writer was suffering from an illness of lack of mental capacity at the time of writing/changing their Will

Daughter Invalidates Mother’s Will because of Testamentary Capacity

A recent case highlighted that even when someone has a Will, it can be overturned or disputed after they have died if the procedures aren’t correctly followed.

Mrs C wrote her daughter out of her Will because she believed that she was a ‘compulsive spend thrift’ and would ‘fritter her inheritance way’. In both 2010 and 2013, Mrs C drafted and redrafted her Will with her Solicitor. She named her son as the Executor and main beneficiary of her Estate.

When she died, her daughter contested the Will arguing that her mother’s Will was not valid as it had been created during a time when Mrs C was suffering continued affective disorders from grief. The daughter also claimed that her mother was prone to severe delusions and depressive states and that she was influenced by her son during the writing of her Will.

When the case was investigated, the Courts found that the son had been the Executor of both the 2010 and 2013 Will. Because of this, it was down to him to prove that the claims brought forward by Mrs C’s daughter were untrue.

Medical experts that were asked to comment on the case were divided, but the Court ultimately ruled that Mrs C didn’t have Testamentary Capacity in either 2010 and 2013.

There was criticism that Mrs C didn’t instruct her Solicitor in person and her son had been involved in the creation of the Will. These failures to follow the Golden Rule helped the Court to rule in her daughter’s favour.

What is the Golden Rule?

It’s the Solicitor’s need to check that the person making a Will has Testamentary Capacity. If they have concerns, they need to bring in a medical professional to assess. The Solicitor’s signature confirms that the person writing the Will has demonstrated that they have the capacity to do so. This doesn’t mean that their Will is valid, but it provides strong evidence to support any claim against the Testamentary Capacity of the writer.

How Simpson Millar Can Help You

If you are worried about Testamentary Capacity, our Wills and Trusts Solicitors can help you to find suitable alternatives. We can help you with creating both types of Lasting Power of Attorney that allows your chose somebody to act on your behalf.

One Power of Attorney deals with your property and financial matters, the other Power of Attorney deals with your health and welfare.

For free legal advice call our Wills & Trusts Solicitors

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