Testamentary capacity – an essential requirement in making a legally valid Will

When making a Will it is essential to have the legal and mental ability to understand the document and its effect.

Without this, a Will is invalid and cannot be used. In the absence of any other Will, the estate would then pass under the Rules of Intestacy.

A 2018 survey of family solicitors carried out by insurer Direct Line found that lack of testamentary capacity was the second most common cause of a successful challenge to a Will’s validity. We look at the legal requirements to satisfy this requirement.

The criteria for testamentary capacity

The person making the Will must firstly understand the nature of making a Will and its effects.

Secondly they need to understand the extent of the property of which they are disposing.

Thirdly they need to be able to understand and appreciate the moral claims that people may have on their estate, for example those who they support or those who have been promised something and who may have acted on that promise to their detriment.

Finally they need to have no disorder of the mind that prevents them understanding what is right or stops them exercising their natural faculties.

When testamentary capacity is challenged

If testamentary capacity is challenged in court, then evidence would be needed from witnesses who could attest to the deceased’s mental capabilities as well as their ability to understand the Will and the claims others might have on their estate.

Expert witnesses could be called, such as doctors, who may have known the deceased at the time the Will was written.

The court will also look at anything the deceased may have said with regard to distribution of their estate.

Avoiding a legal challenge for lack of capacity

Court action can be lengthy and expensive for all involved. It is worth taking the time and trouble to put a valid Will in place before there are any doubts as to testamentary capacity.

If a Will is drafted professionally, then the Will writer will take the time to discuss matters thoroughly with you and make their own assessment of your capacity. They can make filenotes, to be kept at their offices in case they are ever needed, confirming their belief that you were capable of making a valid Will.

If the case ever came to court, they would be able to give evidence as an experienced Will writer that in their assessment you had testamentary capacity.

Should they believe that a case is borderline, they may also ask for a medical professional to become involved to provide additional evidence.

If you would like to talk to one of our expert Wills lawyers, ring us on 0117 952 0698 or email us at info@elm-online.co.uk.

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