Lack of Capacity: Can I Contest a Will if I Was Left Out?

If you have recently discovered that you have been left out of a Will, or received significantly less than you anticipated, you may be left feeling confused and wondering what your legal options are.

Indeed, discovering that you have been left out of a will can be extremely distressing. It may raise difficult questions around fairness, financial security, entitlement and your future. It can therefore be reassuring to know that, in certain circumstances, there are routes available to contest a Will.

This is the next insight in our “Can I Contest a Will if I Was Left Out” series and focuses on the grounds for challenging a Will where there are concerns that the Deceased may have lacked the requisite mental capacity (otherwise known as “testamentary capacity”).

To see the earlier insights in our brand new series, please see here.

What is Testamentary Capacity?

Testamentary capacity refers to the legal standard a person must meet in order to make a valid Will. Namely, an individual must be aged 18 or over and must have the requisite testamentary capacity. Testamentary capacity was defined in Banks v Goodfellow (1870) as ‘soundness of mind, memory and understanding’ and set out that a testator must:

1.Understand the nature and effect of making a Will. This does not require technical legal knowledge, but means that they must appreciate the act of making a Will.

2. Understand the extent of the property of which is being disposed. The testator must have a general awareness of the nature and value of their estate.

3. Be able to comprehend and appreciate the moral and legal claims of those who might expect to benefit. For example, a testator must be able to appreciate that disinheriting a child or dependant may give rise to a claim under the Inheritance (Provision for Family and Dependants) Act 1975, even if they decide to reject such claims and dispose of their property to other beneficiaries.

4. Not be affected by any disorder of the mind that influenced their decision making. Crucially, a mental illness does not automatically remove capacity, but the illness must not distort their reasoning or influence the terms of their Will.

Presumption of capacity

If a Will appears rational and has been duly executed, there is a presumption that the testator had capacity.  If, however, there are concerns which put the testator’s general capacity in doubt, the presumption Will not apply, and the personal representatives of the estate Will have to prove capacity on the basis of the Banks v Goodfellow test.

Statutory test of capacity

More recently, the test for establishing capacity has been placed on a statutory footing under the Mental Capacity Act 2005 (MCA). Whilst the courts have confirmed that the MCA does not replace the Banks v Goodfellow test for assessing testamentary capacity, its principles are often relevant when challenging a Will.

The MCA provides that a person lacks capacity if, at the material time, they are unable to make a decision for themselves because of an impairment of, or a disturbance in the functioning of, the mind or brain. This is the case whether the impairment or disturbance is permanent or temporary.

What is the ‘Golden Rule’?

If a solicitor is instructed to prepare a Will for a testator who is elderly or has suffered a serious illness, the Golden Rule states that the solicitor should obtain a medical opinion confirming capacity before the Will is executed. Failure to comply with the Golden Rule does not automatically invalidate a Will, however it can strengthen a challenge and help to demonstrate its invalidity.

Conversely, there are a number of examples where the Golden Rule was followed and a claim contesting a Will on grounds of lack of capacity still succeeded. This demonstrates that the law in this area is not black and white and will almost always depend on the individual facts of each case. Compliance with the Golden Rule can be highly persuasive and may reduce the scope for dispute, but it does not operate as a complete defence. Instead, it forms part of the wider evidential picture that the court will consider when determining testamentary capacity.

How do I challenge the validity of a Will based on lack of capacity?

Given that there is a presumption of testamentary capacity, it is usually on the person challenging the Will to raise sufficient doubts as to a lack of capacity.

This will usually involve a thorough investigation, compiling evidence of your concerns, including medical evidence (such as GP or hospital records, psychiatric assessments, or care‑home notes), witness evidence (including statements from carers, family members, or others who observed the testator’s mental state) and other forms of evidence in support of your claim.

In most cases, it will also be prudent to obtain a copy of the solicitor's file who prepared the Will, which can be made via what is known as a Larke v Nugus request. Whilst a solicitor/will writer is not obliged to provide the information sought, failure to comply has resulted in significant consequences, including the will writer being brought into the legal proceedings and sued for legal costs which otherwise could have been avoided.

Conclusion

In an ageing population with increasing care needs, we are seeing a steady increase in Will disputes relating to testamentary capacity on the basis that the Deceased lacked mental capacity when they prepared their Will.

If you believe a Will may be invalid on the grounds of a lack of capacity, our specialist team can help you understand your options and help you take the next steps to investigate your concerns with confidence.

Key Takeaways

• An individual must be aged 18 or over and have the requisite mental capacity to make a valid Will.
• The legal test for establishing testamentary capacity was established in Banks v Goodfellow.
• There is a presumption of testamentary capacity where a Will appears rational and has been properly executed.
• The Mental Capacity Act 2005 provides a statutory test of capacity, even though it does not directly apply to Will drafting.
• The ‘Golden Rule’ provides for legal practitioners to consider obtaining a medical report, where a testator is elderly or has suffered a serious illness.
• Contesting a Will on the grounds of a lack of capacity involves a thorough investigation compiling together medical, witness and other forms of evidence in support of your claim.
• You can make a Larke v Nugus request to obtain a copy of the solicitor’s file who prepared the Deceased’s Will.

How can Tozers help?

Contesting a Will is a sensitive, time-bound process. Our Contentious Probate team is led by an Association of Contentious Trusts and Probate Specialists (ACTAPS) accredited lawyer and has the expertise to assist you.

As a top firm for client satisfaction, we’ve built our reputation on listening first and talking second. We specialise in turning legalese into easily actionable and practical steps, ensuring you feel confident and informed as to your legal position and the options available to you to contest a Will.

Think a Will might be invalid? Contact our specialist Contentious Probate team today.

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