What are the requirements for a valid Will ? In summary the Will must be in a form that complies with the Wills Act 1937 section 9 and the person making the Will known as the testator must have testamentary capacity, knowledge and approval and the testator must not be subjected to undue Influence.

Are you free to leave your estate to who ever you want ? The starting position is that a person with capacity and who is free from undue influence is entitled to leave property to whomever they wish.

When must a person making a Will have mental capacity ? The relevant time at which the testator must have capacity for the Will to be valid is at the time the Will was signed.

What is the test to determine if someone has capacity to make a Will ? The case of Banks v Goodfellow 1870 sets out the test for capacity. Judge Cockburn in the case of Banks v Goodfellow said “its essential that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and with a view to the latter object, that no disorder of the mind shall poison his affections, avert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about disposal of it which, if his mind had been sound, would not have been made”

Who’s duty is it to establish the testator has testamentary capacity ? In the case of Goss- Custard v Templeman 2020 the Judge made the following comment “The parties in this case agree that the legal onus of providing the validity of a disputed will falls on the party propounding it, and that if a will is rational upon its face and duly executed there is a presumption of testamentary capacity. Accordingly , the initial evidential onus is placed on the Defendants to adduce some evidence capable of showing the deceased lacked testamentary capacity. If that onus is discharged, the evidential onus reverts to the Claimants to prove that the testator did in fact have testamentary capacity”. Therefore if you wish to challenge a Will on the basis of lack of testamentary capacity you will need to produce evidence in support and likewise if you intend defending such a claim once evidence is produced that questions capacity the onus is on you should you be propounding the Will to establish the deceased did have capacity. The Court will as per the case of Burns v Burns evaluate all the available evidence at trial however its as important that those propounding the Will gather evidence as it is the person challenging the Will.

What is the Golden Rule ? The case of Keys v Keys 2010 is useful to consider when answering this question. In summary where a solicitor is instructed to prepare a Will for an elderly testator or for one that has been seriously unwell, the solicitor should arrange for a medical practitioner to satisfy himself as to to the capacity and understanding of the testator and to make a contemporaneous record of the the examination and the findings. Compliance with the golden rule does not mean the Will cannot be challenged or that the testator had capacity, nor does non-compliance demonstrate invalidity. Its purpose is to attempt to limit disputes.

Can testamentary capacity come and go ? Yes. In the case of Park v Park 1954 the deceased married at 11 am on 30th May 1949 and made a will at 3pm the same day. In this case it was found that the deceased condition changed from day to day and almost hour to hour. The Court held that the deceased had capacity to marry but not testamentary capacity to make a Will.

What disorders could impair testamentary capacity ? It should be noted that establishing a person has a mental disorder does not prevent a person from having capacity whether that be testamentary or otherwise. There are a wide range of disorders which can affect testamentary capacity however the most common types are Dementia, Alzheimer’s Disease, Vascular dementia, Fronto-Temporal Dementia, Delirium and Affective disorders.

How do I challenge a Will on the basis of undue influence ? You should take legal advice before taking action in this complicated area. Pronouncing against the validity of an alleged Will on the grounds of lack of testamentary capacity is a probate claim. All probate claims are allocated to the multi track (CPR rule 57.2(4). Probate claims in the High Court are assigned to the Chancery Division (CPR rule 57.2(4).

How do I protect my position whilst I am investigating matters concerning testamentary capacity? You take legal advice immediately and you discuss steps being taken such as taking a Caveat.

For further information please contact Clodes Solicitors either through the website or on 02920 765050. We can take cases anywhere in England and Wales and are able to have meetings by Zoom or other platforms, by phone and in person where the COVID19 government provisions allow.

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