21 August 2023

Capacity When Making A Will

In order to make a valid will, the testator (i.e. the person making the will) must demonstrate testamentary capacity.

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In order to make a valid will, the testator (i.e. the person making the will) must demonstrate testamentary capacity (i.e. mental capacity) when providing their instructions and when executing (i.e. signing) the will.

If the testator does not have testamentary capacity, the will may be deemed invalid. If a will is deemed invalid, this means that the will is no longer applicable to the testator’s estate and as a result, may pass either under a previous will or under the Rules of Intestacy whereby the statutory laws of succession apply (i.e. how property passes upon death).

Determining capacity

However, in the first instance, if the will appears rational and correctly executed, there is a presumption of capacity in place when the will was executed.

It is, therefore, important that the testator understands and appreciates the capacity required of them when making a will to ensure that their wishes are upheld. The legal test to demonstrate testamentary capacity when making a will is defined in a seminal case from 1870 (Banks v Goodfellow).

There has been recent English case law to determine the applicable test for testamentary capacity. The courts reviewed the interplay between the Mental Capacity Act 2005 (the statutory test) and Banks v Goodfellow (the common law test). It was determined that the common law test remained the most suitable and applicable test to undertake when determining testamentary capacity.

Under the common law test, the testator must broadly understand the following:-

1.       The nature of the act and its effects

Namely that the will comes into effect upon death, that the will can be revoked (cancelled), the effect of the named beneficiaries passing away before you (otherwise known as predeceasing), and the reasoning behind the appointment of executor (the person(s) with the legal authority to handle your estate upon death).

2.       The extent of property being disposed of under the will

Namely the assets either capable or not capable of passing under the will.

3.       The claims to which they ought to consider

The testator must appreciate moral obligations placed on them in relation to excluding certain categories of people from their will.

The testator must also not be subject to a delusion which influences their instructions when making a will. This means that the delusion must not produce different instructions which would not have been provided had the testator been of sound mind. This is assessable on a case-by-case basis. The mere existence of a delusion does not in itself invalidate the will.

It is important to note that the testamentary capacity of the testator as a whole is assessable on an individual basis. The mere exclusion of certain categories of people from the will does not in itself deem the will invalid if the common law test referred to above can be satisfied.

If the testator has considered the common law test and still wishes to exclude certain categories of people from the will, there are steps which the testator can take in order to strengthen the will should there be a concern that their capacity may be challenged.

It is important to put these steps in place whilst the testator is able to do so, as in the event that a capacity challenge arises, the testator would not be able to defend their will (and wishes).

Please note that the same testamentary capacity is required when making either amendments to a will or a codicil.

Let us help prepare your will

It’s vital to work with a legal professional when drafting your will, to ensure that your wishes upon death can be carried out. Please contact the team at Kew Law where we can help take you through the process.

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