What if Someone Lacks Mental Capacity When Writing a Will?

INTRODUCTION

Determining a Testator's mental capacity is a fundamental pillar of Will writing.

This article explores the consequences of any uncertainty surrounding a Testator's mental capacity when they made the Will. We'll also look briefly at the legal criteria for assessing mental capacity, what happens in the absence of this assessment, and the steps you can take to challenge (or defend) a Will based on lack of capacity.

MENTAL CAPACITY WHEN WRITING A WILL

For a Will to be considered valid, the Testator (i.e., the person writing the Will) must be deemed to have sufficient mental capacity at the time of making or altering their Will.

If it is deemed that the Testator did not have the required mental capacity at the time of writing or altering the Will, then the Will can be considered invalid.

LEGAL REQUIREMENTS

The test for capacity to execute a Will is based on case law, whereby a fundamental legal standard is in place to ensure a Will's validity, and a Testator must:

• Understand the Nature of Making a Will and its Effects: The Testator should understand they are drawing up a Will that legally dictates the distribution of their assets after their death.

• Understand the Extent of the Property They are Disposing: The Testator needs to be aware of the nature and value of their Estate that will be distributed through the Will document.

• Comprehend and Appreciate Claims to their Estate: The Testator must be able to recognise and consider potential claims of those who might expect to inherit, such as family members and other dependents.

• No Disorder of the Mind Should Influence Decisions: The Testator must not suffer from any mental disorder or condition that impairs their ability to make rational decisions about the distribution of their Estate.

This test provides assurance that the Testator is free from undue influence or incapacity and that they are making their Will in a sound state of mind.

CONSEQUENCES OF INSUFFICIENT MENTAL CAPACITY

When a Testator lacks the required mental capacity, the Will is considered invalid due to what is known as a "lack of testamentary capacity."

This absence can lead to legal disputes and challenges, especially if there's an allegation that a significant change to a Will was made under erroneous circumstances. 

CHALLENGES TO MENTAL CAPACITY

The term "mental capacity" can often be challenged. In a recent High Court case, a father disinherited his daughter and left his entire Estate to charity a few weeks before committing suicide.

The Court found in favour of the charity on the basis that the Testator had the necessary mental capacity to write out the Will.

Such disputes will then fall back on "testamentary capacity" and whether the Testator was of sound mind at the time and date of writing or altering the Will.

Remember that challenging (or defending) a Will based on an alleged lack of testamentary capacity can turn out to be expensive in terms of potential legal fees, so it's important you fully understand the intricacies of any such challenge (or defence) such as this. 

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