Testamentary Capacity Questions answered

Updated: 2nd October 2025

This article provides comprehensive guidance on the legal requirements for a valid Will in England and Wales, with a particular focus on testamentary capacity and other grounds for challenging a Will. It also outlines the procedural steps and evidential considerations involved in contentious probate claims.

1. What are the fundamental requirements for a valid Will?

For a Will to be legally valid in England and Wales, several key requirements must be satisfied. These are primarily derived from the Wills Act 1837 and established common law principles. In summary, the Will must:

• Be in writing and signed by the testator (the person making the Will), or by some other person in their presence and by their direction (Section 9, Wills Act 1837).
• Appear that the testator intended by their signature to give effect to the Will.
• The signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time.
• Each witness must attest and sign the Will, or acknowledge their signature, in the presence of the testator (but not necessarily in the presence of any other witness).
• The testator must have testamentary capacity at the time the Will is signed.
• The testator must have knowledge and approval of the contents of the Will.
• The testator must not have been subjected to undue influence.

Failure to meet any of these requirements can render a Will invalid, either in whole or in part, and may lead to it being set aside by the court.

2. Are you free to leave your estate to whomever you wish?

The starting position in English and Welsh law is that a person with testamentary capacity and who is free from undue influence is entitled to leave their property to whomever they wish. This principle is known as testamentary freedom. However, this freedom is not absolute. The Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of individuals (such as spouses, civil partners, children, and dependants) to apply to the court for reasonable financial provision from an estate if the Will (or intestacy rules) does not make adequate provision for them. Such a claim does not challenge the validity of the will itself but seeks to alter the distribution of the estate.

3. When must a person making a Will have mental capacity?

The relevant time at which the testator must possess testamentary capacity for the Will to be valid is at the time the Will was signed. While evidence of capacity around the time of instruction or execution is important, the critical moment is the point of signing. However, if a testator gives instructions for a Will when they have capacity, but then loses capacity before execution, the Will may still be valid if they understood that they were signing a Will for which they had previously given instructions (known as the ‘Parker v Felgate’ rule).

4. What is the test to determine if someone has capacity to make a Will?

The long-established legal test for testamentary capacity originates from the seminal case of Banks v Goodfellow (1870). Judge Cockburn in that case articulated the test as follows:

“It is 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.”

• This test, while over 150 years old, remains the cornerstone of assessing testamentary capacity. It requires the testator to:
• Understand the nature of the act of making a Will and its general effect: This means understanding that they are making a document that Will dispose of their property after their death.
• Understand the extent of the property of which they are disposing: They do not need to know the precise value of every asset, but they must have a general awareness of the nature and approximate value of their estate.
• Appreciate the claims to which they ought to give effect: This refers to understanding who might reasonably expect to benefit from their Will, even if they ultimately decide not to provide for them. This includes moral claims, not just legal obligations.
• Not be suffering from any ‘disorder of the mind’ or ‘insane delusion’ that poisons their affections, perverts their sense of right, or influences their will in disposing of their property: An insane delusion is a belief that has no basis in reality and cannot be reasoned with. If such a delusion affects the disposition of the estate, the Will may be invalid.

It is important to note that the test is specific to the act of making a will and is not the same as the test for mental capacity under the Mental Capacity Act 2005, although there are overlaps.

5. Whose duty is it to establish the testator has testamentary capacity?

In the case of Goss-Custard v Templeman (2020), the Judge reiterated the established legal principles regarding the burden of proof in disputed will cases. The legal onus of proving the validity of a disputed Will falls on the party propounding it (i.e., the person seeking to uphold the Will).

However, there is an initial evidential presumption: if a will is rational on its face and has been duly executed (i.e., signed and witnessed correctly), there is a presumption that the testator had testamentary capacity. Accordingly, the initial evidential onus is placed on the Defendants (the party challenging the Will) to adduce some evidence capable of showing the deceased lacked testamentary capacity.

If that initial evidential burden is discharged by the challenger, the evidential onus then reverts to the Claimants (the party propounding the Will) to prove, on the balance of probabilities, that the testator did in fact have testamentary capacity. The court will, as per cases such as Burns v Burns, evaluate all the available evidence at trial. Therefore, it is equally important for those propounding the will to gather evidence as it is for the person challenging the Will.

Evidential Considerations

When challenging or defending a Will on the grounds of capacity, various types of evidence are crucial:

• Medical Records: These are often the most important evidence. They include GP notes, hospital records, psychiatric assessments, and any diagnoses of conditions affecting cognitive function (e.g., dementia, Alzheimer’s, delirium). Consent from the deceased’s personal representatives is usually required to obtain these.
• Witness Statements: Statements from individuals who knew the testator well, such as family members, friends, carers, and medical professionals, can provide valuable insights into the testator’s mental state, behaviour, and ability to manage their affairs around the time the Will was made.
• Solicitor’s File and Attendance Notes: If a solicitor prepared the Will, their file, including attendance notes, correspondence, and any capacity assessments they undertook, will be highly relevant. These documents can shed light on the instructions given, the solicitor’s observations of the testator, and any concerns raised.
• Previous Wills: Earlier Wills made by the testator can provide a benchmark for their usual testamentary intentions. Significant departures from previous patterns of disposition may raise questions about capacity or undue influence.
• Expert Medical Evidence: In complex cases, it is common to instruct an independent medical expert (often a geriatric psychiatrist) to provide a retrospective opinion on the testator’s capacity, based on a review of all available medical and lay evidence.

6. What is the Golden Rule?

The “Golden Rule” is a practice recommended by the courts, particularly in cases where a testator is elderly or seriously unwell. 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 who has been seriously unwell, the solicitor should arrange for a medical practitioner to satisfy themselves as to the capacity and understanding of the testator and to make a contemporaneous record of the examination and their findings.

Compliance with the Golden Rule does not automatically mean the will cannot be challenged or that the testator definitively had capacity, nor does non-compliance automatically demonstrate invalidity. Its primary purpose is to attempt to limit disputes by providing robust, independent evidence of capacity at the time the will was made. While not a legal requirement, failure to follow the Golden Rule can make it more difficult to defend a will against a capacity challenge.

7. Can testamentary capacity fluctuate?

Yes, testamentary capacity can indeed come and go. This is often referred to as having “lucid intervals.” In the case of Park v Park (1954), the deceased married at 11 am on 30th May 1949 and made a Will at 3 pm the same day. In this case, it was found that the deceased’s 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 on the same day.

This highlights that capacity is not a static state and can be affected by various factors, including medication, time of day, or the progression of an illness. Therefore, evidence must focus on the testator’s mental state at the specific time the Will was executed.

8. What disorders could impair testamentary capacity?

It should be noted that establishing a person has a mental disorder does not automatically prevent them from having capacity, whether that be testamentary or otherwise. The focus is on the effect of the disorder on the testator’s ability to meet the Banks v Goodfellow test. There are a wide range of disorders which can affect testamentary capacity; however, the most common types include:

• Dementia: A general term for a decline in mental ability severe enough to interfere with daily life, including memory loss, communication difficulties, and impaired reasoning.
• Alzheimer’s Disease: The most common cause of dementia, characterised by progressive memory loss and cognitive decline.
• Vascular Dementia: Caused by reduced blood flow to the brain, often leading to problems with planning, decision-making, and processing information.
• Fronto-Temporal Dementia: Affects the frontal and temporal lobes of the brain, leading to changes in personality, behaviour, and language.
• Delirium: A sudden, severe confusion and rapid changes in brain function that occur with physical or mental illness.
• Affective Disorders: Severe depression or bipolar disorder can, in extreme cases, so profoundly affect a person’s judgment and understanding that it impairs their capacity to make a rational Will.

Other conditions: Severe pain, medication side effects, stroke, or brain injury can also temporarily or permanently impact capacity.

9. How do I challenge a Will on the basis of undue influence?

Challenging a Will on the grounds of undue influence is notoriously difficult, as the burden of proof lies entirely with the person alleging it. You should take legal advice before taking action in this complicated area.

The legal test for undue influence in the context of Wills requires the challenger to prove that the testator’s free will was overcome by coercion or improper pressure, leading to a disposition they would not otherwise have made. It is not enough to show that the testator was persuaded or influenced; the influence must have been ‘undue’ in the sense that it overpowered the testator’s independent judgment.

Key elements to consider when alleging undue influence include:

• Coercion: Was there actual pressure or threats that forced the testator to make the Will in a particular way? This can be physical, emotional, or psychological.
• Lack of Free Will: Did the influence effectively destroy the free agency of the testator? The Will must not be the product of the testator’s own independent mind.
• Opportunity and Motive: While not proof, the presence of an opportunity for influence and a motive for the alleged influencer can be relevant circumstantial evidence.
• Suspicious Circumstances: Unusual provisions in the Will, a sudden change in testamentary intentions, or the exclusion of natural beneficiaries without clear reason can raise suspicions.

Unlike lifetime gifts, there is no presumption of undue influence in Wills, even in relationships of trust and confidence. The challenger must prove the coercion on the balance of probabilities.

10. Lack of Knowledge and Approval

Even if a testator has testamentary capacity, a Will can still be invalid if they did not have ‘knowledge and approval’ of its contents. This means the testator must have understood and approved of what was written in the Will.

• This ground for challenge often arises in situations where:
• The testator was illiterate or had difficulty reading.
• The Will was prepared by someone who stands to benefit significantly from it.
• The Will contains complex legal language that the testator may not have fully comprehended.
• The testator was vulnerable or frail, even if they met the Banks v Goodfellow test for capacity.

If there are suspicious circumstances surrounding the preparation or execution of a Will, the burden of proving knowledge and approval shifts to the party propounding the Will. They must then satisfy the court that the testator truly understood and approved of the Will’s provisions.

11. Lack of Due Execution

As outlined in Section 1, the formal requirements for executing a will under Section 9 of the Wills Act 1837 are strict. Failure to comply with these formalities will render a Will invalid.

• Common issues leading to a challenge based on lack of due execution include:
• The Will was not signed by the testator.
• The testator’s signature was not made or acknowledged in the presence of two witnesses present at the same time.
• The witnesses did not sign or acknowledge their signatures in the presence of the testator.
• A beneficiary or their spouse/civil partner acted as a witness. While this does not invalidate the entire Will, it will invalidate the gift to that beneficiary (Section 15, Wills Act 1837).

While the court has some limited power to rectify a Will for clerical errors or a failure to understand the testator’s instructions, it cannot generally cure a fundamental failure of due execution.

12. Fraud and Forgery

A Will can be challenged if it is proven to be a fraudulent document or a forgery. This is a serious allegation and requires a high standard of proof.

Fraud involves deliberate deception to induce the testator to make a Will in a particular way. Forgery involves the creation of a document that purports to be a Will but was not genuinely signed by the testator or with their authority.

Evidence in such cases often involves forensic document examination, witness testimony, and analysis of the circumstances surrounding the Will’s creation.

13. The Contentious Probate Pre-Action Protocol

Before issuing court proceedings to challenge a Will, parties are generally expected to comply with the Contentious Probate Pre-Action Protocol. This protocol, which came into effect in 2014, aims to encourage early exchange of information and to promote settlement of disputes without the need for litigation.

• Key aspects of the protocol include:
• Letter of Claim: The challenger (the prospective claimant) should send a detailed Letter of Claim to the propounder of the Will (the prospective defendant), setting out the grounds for the challenge, the facts relied upon, and the remedies sought.
• Letter of Response: The propounder should then send a Letter of Response, addressing the points raised in the Letter of Claim and providing their position.
• Disclosure of Documents: Both parties are expected to disclose relevant documents, such as medical records, previous Wills, and solicitor’s files, to facilitate a full understanding of the issues.
• Consideration of Alternative Dispute Resolution (ADR): The protocol strongly encourages parties to consider ADR methods, such as mediation, to resolve the dispute amicably.

Failure to comply with the protocol can lead to adverse costs orders from the court, even if a party is ultimately successful in their claim.

14. Practical Initial Steps When Considering a Challenge

If you are considering challenging a Will, it is crucial to take immediate legal advice. Beyond discussing steps such as entering a Caveat (which prevents a Grant of Probate from being issued without notice to you), other initial practical considerations include:

• Gathering Information: Start collecting any relevant documents or information you have, such as copies of the disputed Will, previous Wills, medical records (if accessible), and contact details of potential witnesses.
• Identifying Grounds: Work with your solicitor to clearly identify the specific legal grounds on which you intend to challenge the Will (e.g., lack of capacity, undue influence, lack of due execution).
• Considering ADR: Discuss with your solicitor the suitability of alternative dispute resolution methods, such as mediation, as a potentially less costly and less adversarial way to resolve the dispute.
• Understanding Potential Costs: Obtain clear advice on the potential costs involved in pursuing a contentious probate claim, including your own legal fees and the risk of having to pay the other side’s costs if you are unsuccessful.

15. Costs in Contentious Probate Claims

The general rule in English and Welsh litigation is that “costs follow the event,” meaning the unsuccessful party pays the successful party’s costs. However, contentious probate claims have specific exceptions to this rule, reflecting the unique nature of these disputes.

• The court has discretion regarding costs and may make various orders, including:
• Costs from the Estate: If the dispute was caused by the testator or by ambiguities in the Will, or if the circumstances reasonably led to an investigation into the Will’s validity, the court may order that the costs of all parties be paid from the estate.
• No Order as to Costs: In some cases, particularly where there are genuine and reasonable grounds for challenging a will, the court may make no order as to costs, meaning each party bears their own expenses.
• “Loser Pays” Rule: If a party brings a claim without reasonable grounds or behaves unreasonably, the court is likely to apply the standard “loser pays” rule.

It is essential to obtain clear advice on the potential costs implications at an early stage, as contentious probate litigation can be expensive.

For further information or to discuss your specific circumstances, 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 remotely by Microsfot Teams or Zoom, by phone and in person where appropriate.