Challenges to wills on the grounds of lack of mental capacity are likely to increase. An ageing population combined with complex family dynamics and rising property prices is driving this development.

In June 2020 the Office for National Statistics projected that the majority of household growth in England over the next 10 years will be because of an increase in older households without dependent children, particularly those where the person is aged 75 years and over.

A 2018 survey revealed that among over 55s, 42 % don’t have a will. Few of us make a will until later life and sometimes this may be when dementia is suspected or diagnosed. There are currently around 850,000 people living with dementia in the UK and this is projected to reach 1.6 million people by 2040. A will challenge can arise in a number of situations, but a very common one is when it is suspected that the individual did not have ‘testamentary capacity’ i.e. the necessary mental capacity, to legally make a will.

Someone who makes a will is called the ‘testator’. The individuals they appoint to carry out their wishes are called ‘executors’.  An executor has authority to act from the date of the deceased’s death. They must collect in the estate and administer it according to the law, which usually involves applying for a Grant of Probate. Their job can be difficult when it becomes clear that the validity of the will is being challenged. Sometimes the first indication that there’s a problem is when a Grant can’t be issued by the Probate Registry because a caveat has been lodged.

What should an executor do in this situation? First of all, they should be aware that in their role as an executor they need to remain strictly neutral in any dispute. An executor may also be a beneficiary of the estate and may be deeply upset about the challenge. But it’s vital they are aware of the need for neutrality with their ‘executor’ hat on as otherwise this could open them up to criticism. Often (though not always) in will disputes, the legal costs of the executors – and sometimes that of the person bringing the claim – will be paid by the estate. It’s important to bear that in mind and to consider whether settling out of court may make more financial sense than fighting a case all the way to trial. Equally well, the claim may be a ‘try on’ and the testator may have had very good reasons for excluding the claimant from their will. Executors often, understandably, feel that they must respect the deceased’s last known wishes.

So, what is ‘testamentary capacity’? A case from 1870, Banks v Goodfellow sets out the test:

The testator must:

1. understand the nature of the act of making a Will and its effects
2. understand the extent of their estate of which they are disposing by Will
3. understand and appreciate any claims against their estate, and
4. not suffer from any ‘disorder of the mind’ such as to impair or influence the above factors

It is assumed by the court that if a will has been properly ‘executed’ (signed and witnessed) and it appears rational on the face of it, that the testator had capacity. It is for the person challenging the will to raise a ‘real doubt’ about capacity. Evidence will need to be obtained from the person who prepared the will and often the deceased’s medical records will need to be disclosed. Expert evidence and witness statements are also often obtained; it’s an expensive and time consuming process.

Sometimes the will challenger will argue that the will isn’t valid because the so called ‘golden rule’, set out in the 1975 case of Kenward v Adams, hasn’t been followed:-

“… In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straight forward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken.  The making of a Will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator and records and preserves his examination and findings”.

If you need legal help or advice, get in touch with our Will Disputes expert Sarah Young on our freephone 0800 8 60 62 65.

Sarah Young Solicitor & Director – Litigation