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Wills and Capacity

The papers have been reporting a contested probate case where an elderly man changed his Will to disinherit those he had previously regarded as family and instead left his entire estate to a builder acquaintance. The family beneficiaries are claiming that the elderly testator did not know and approve of the Will’s contents. Knowledge and approval is essential for a Will to be valid but the family contesting the Will face an uphill struggle, unless they can produce evidence of the testator’s lack of knowledge and approval of what the Will contained. The burden of proving this will be on them if the Will is correctly executed and the testator is judged to have capacity.

The common law relating to capacity to make a Will is in fact long established. For a person to be considered capable they must understand the nature of making a Will and its effects, the extent of his or her assets and recognise those who might be said to have a claim on their estate. It has recently 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).

If the disappointed beneficiaries in the current case are unsuccessful then it is unlikely that they will have any further grounds to challenge the Will as they do not fall within the classes of relatives and others that might have a claim on the ground that the Will failed to make reasonable financial provision for them.

It should be remembered that if there is any doubt about a person’s capacity to make a Will then 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 All is not lost if someone is judged not to have capacity and they have no Will, or one that is outdated, an application can be made to the Court of Protection for a statutory Will to be made for them.

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