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Wills and Capacity

In a contested probate case, an elderly man changed his Will to disinherit those he had previously regarded as family and instead left his entire estate to an acquaintance. The family beneficiaries claimed that the elderly man did not know and approve of the Will’s contents because he did not have the capacity to change his Will.

Knowledge and approval is essential for a Will to be valid and those contesting a Will face an uphill struggle unless they can produce evidence that the person who made the Will (the testator) did not know and approve of what the Will contained. The burden of proving this will be on them if the Will is shown to be correctly executed and the testator is judged to have capacity.

What is capacity to make a Will?

At common law, it is established that in order to have capacity to make a Will a testator must understand:

  • the nature of a Will and its effects;
  • the extent of his or her property; and
  • the moral obligations that he or she ought to consider. This includes distinguishing between individuals and reaching a moral judgment, such as whether one child should be preferred over other children because they are less well provided for, more deserving or in need of greater financial assistance because of family responsibilities or state of health

It has been established that in a contested probate case the question of capacity is retrospectively determined by this common law test and no account need be taken of the tests of capacity laid down in the Mental Capacity Act 2005 (although these are relevant when the Will is made).

Can people who lack capacity make a Will?

It should be remembered that if there is any doubt about a person’s capacity to make a Will, the Will drafter will obtain an opinion as to capacity from the testator’s doctor before proceeding. All is not lost if someone is judged not to have capacity and they have no Will or one that is outdated. An application can be made to the Court of Protection for a statutory Will. A statutory Will is a Will that can be made for people without the mental capacity to make one themselves.

Read our Statutory Wills FAQ.

Contact a Court of Protection Solicitor

We have a specialist team of Court of Protection solicitors, experienced in helping families with statutory Wills applications. Contact us for a free and confidential initial consultation. Clarke Willmott has offices in LondonManchesterBristolCardiffBirminghamSouthampton and Taunton. Call us now on 0800 652 8025 or contact us online.


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