When a person executes a will they must have the mental capacity to do so. Where a will appears rational and has been duly executed, it is presumed that the testator had capacity unless somebody provides evidence to rebut this.
Please see our insight How do I make a Will? | Tozers Wills and Probate Lawyers for more information on how to duly execute a will.
What is mental capacity?
Mental capacity refers to a person’s ability to make decisions, whether they are decisions affecting their everyday life or those that are more significant. It is important to establish that a person is able to carry out the decision-making process in order to protect them.
It is important to note, however, that just because a decision seems unwise or leads to negative consequences it does not mean that they lack capacity to make this decision.
What is the standard for mental capacity?
A person is likely to have the mental capacity to execute a will if they understand the following: -
- The nature and effect of the act of creating a will
- The extent of the property which they are dealing with in their will
- Any potential claims that may arise in relation to their property
In addition to this, there must be no disorder of the mind or insane delusion influencing the person who is creating their will.
The ‘Golden Rule’
If a solicitor is instructed to draft a will for a person who is elderly or ill, they should take steps to satisfy themselves that their client has capacity. In some cases, this may mean that the solicitor involves a medical practitioner to assess their client’s capacity.
How do I challenge the validity of a will based on lack of capacity?
It is possible to challenge the validity of a will based on a lack of capacity if you are able to compile evidence of your concerns. The first step in a claim of this nature is a thorough investigation that may involve seeking medical evidence, witness evidence and other forms of evidence in support of your claim.
If you are considering challenging a will based on lack of capacity, please give us a call to see how we may assist you.
