This information has been prepared by Sykes Anderson Perry Limited as a general guide only and does not constitute advice on any specific matter. We strongly recommend that you seek professional advice before taking action. No liability can be accepted by us for any action taken or not taken as a result of any information or advice given or omitted.
When clients visit a solicitor with a view to making a will, they are sometimes concerned that after their death the will may be challenged on the grounds that they did not have mental capacity when they executed the will. This is particularly a concern for elderly clients or clients whose health has been impaired for some reason. The rules relating to what is called testamentary capacity i.e. mental capacity in relation to wills, arise from cases in addition to the Mental Capacity Act of 2005.
Generally, where a person making a will (a testator) has any concerns, it is better to plan for the eventuality of the will being challenged on these grounds, than wait to defend it after their death. The simple solution is for a medical practitioner to be consulted, the terms of the will are communicated to him and the rules as set out in case law are explained to him. A medical report is then drawn up to establish whether or not the testator actually has mental capacity. The courts also advise that the medical practitioner should witness the will, although in practice, few will agree to do so. In addition the clients should ensure that the solicitor takes complete notes when taking instructions from them and they should set out in writing any reasons which may or may not be obvious or deal with legacies that are likely to be challenged. This is of assistance to the courts when trying to decide whether or not a testator had testamentary capacity, if the will is challenged at a later date.
The mental capacity test set out through case law, is called the Golden Rule, and has three parts:
- The testator must understand that they are making a will and its effects.
- The testator must understand the extent of their property being disposed of, but they need not remember every single asset.
- The testator must be able to understand and appreciate the claims to which a person making a will ought to give effect.
Other steps can be taken, such as comparing a new will with an old one. If a testator only adds say new grandchildren in their new will, but the new will is substantially the same, it is less likely that it will be challenged than where all the beneficiaries under the old will are excluded (despite still being alive!) and a stranger becomes the sole beneficiary under the new will.
If a person lacks testamentary capacity, then it is possible to apply to the Court of Protection for what is known as a statutory will. If there are existing wills this will assist in the preparation of a statutory will.
In any event, if you wish to choose how to leave your estate, you should seek advice as soon as possible.
Nicole Gallop Mildon
Solicitor and diplômée notaire
Telephone: + 44 (0)20 3178 3770