Understanding Testamentary Capacity

Katie de Swarte
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Table of Contents

What is testamentary capacity?

Testamentary capacity refers to a person’s ability, both legally and mentally, to create a valid will.

In order to create a valid will the person must be able to understand the nature and extent of their property, the implications of making a will, and recognise the rights others may have on their estate.

To possess testamentary capacity, an individual typically needs to fulfil several requirements:

  • Mental soundness: The person must possess the mental ability to grasp the purpose and consequences of making a will, including comprehending the inherent nature and value of their assets.
  • Familiarity with assets: They should possess knowledge about their property and belongings, along with a comprehension of how these assets will be distributed as per the provisions of the will.
  • Awareness of beneficiaries: The individual should be mindful of the rightful recipients who would usually be expected to inherit from their estate, such as close family members. They must also be capable of making rational decisions concerning the allocation of their assets among these beneficiaries.
  • Absence of undue influence: The person must be free from any form of improper persuasion or coercion from external sources that might unduly influence their decisions regarding asset distribution.

Testamentary capacity guarantees that individuals possess the mental capability and understanding necessary to make well-informed decisions about the distribution of their assets after they die. It safeguards their interests and helps prevent situations where individuals could be exploited or coerced into creating a will that does not genuinely reflect their intentions.

Contesting a will due to mental capacity

A sad case in which a bereaved father made a will without the requisite mental capacity to do so has clarified who bears the burden of proving testamentary capacity. In these types of cases, the burden of proving these cases can be far from straightforward.

Our specialist dispute lawyers are experienced in contested wills and testamentary capacity claims and are known for their sensitive but incisive approach to the issues. The starting point in such claims is that there is a presumption of testamentary capacity, but where there is sufficient evidence of mental impairment or lack of testamentary capacity on the part of the testator, the burden of proof shifts to the other side.

Slight evidence will not be sufficient to reverse the burden of proof, but if real doubt is raised, it is then for the propounder of the will to prove the deceased did have capacity.

The burden of proof in a testamentary capacity case

This was an appeal ruling following confusion over how the burden of proof should be treated in a capacity case, which led to an error on the part of the District Judge.

The deceased made a will in 2017 in tragic circumstances. He was highly vulnerable, having lost his wife five months earlier and his son four weeks before that. Just over two months before making the will, he had significantly failed a screening test for cognitive impairment.

The deceased had made an earlier will in 2014 which benefited his daughter, but he explicitly excluded her in the 2017 will. She brought a claim on the basis that her father lacked testamentary capacity, and was not of sound mind, memory or understanding at the time.   

The district judge decided that rather than getting bogged down in the issue of the burden of proof, he would proceed on the basis that the daughter bore the burden of proof, and see where that led. She lost her claim and appealed. 

The High Court described that approach as “a recipe for confusion”. There had been sufficient evidence before that judge to raise serious doubts as to capacity such that the burden of proof would shift to the defendant to prove capacity. He had, effectively, got it the wrong way round: it was for the defendant to prove capacity, not for the claimant to disprove it. 

Employing the correct approach would have led to a different conclusion. The defendant had failed on the facts to prove that the deceased did have testamentary capacity when he made the 2017 will. The judge ordered the 2014 will to be proved and the daughter could claim her inheritance under it. 

What does this mean for testamentary capacity claims?

This ruling illustrates the shifting and, at times, confusing nature of the evidential burden of proof in testamentary capacity cases. It is important for anyone with concerns surrounding the testamentary capacity of a will-maker, whether or not they are now deceased, to seek specialist advice from wills disputes solicitors.

If you wish to make a will or are concerned about a loved one making a will and have worries about mental capacity issues, we can assist. The team can advise how to make a valid will but be protected from potential claims based on capacity. 

Katie de Swarte is an associate solicitor who specialises in contested claims. Katie is able to advise you on whether you can bring such a claim, based on the facts of your circumstances, and is also able to assist in defending such a claim. Katie is featured in the Legal 500 as a recommended solicitor in London.

To speak with Katie please call, or complete an online enquiry form.

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    • Katie de Swarte and Elspeth Neilson have both instructed me recently, and both seemed to me to be able to build excellent relationships with their clients and to run their practices very efficiently

      Legal 500 2022

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      Legal 500 2022

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