Testamentary Capacity: What Is It?

What is the meaning of testamentary capacity?

For a Will to be valid, the person writing it (known as the testator) will need to have what’s called ‘testamentary capacity’. This essentially means that they understand what making a Will entails and the implications it will have for their loved ones.

If someone were to write a Will without testamentary capacity, it could be challenged after their death. In these cases, the estate might be distributed in line with an earlier Will, or the rules of intestacy may be applied. In both scenarios, there’s a risk of the testator’s wishes being disregarded.

In this guide, we’ve answered some of the most commonly asked questions around testamentary capacity so you can get a better understanding of how it works. We’ve explored:

Who assesses testamentary capacity?

For decades, Wills and Probate solicitors have followed what’s widely known as the ‘golden rule’ when it comes to determining who has testamentary capacity.

This term was created following the case of Kenwood v Adams in 1975. During court proceedings, the presiding judge stated that the making of a Will by someone who was elderly or suffering from a serious illness “ought to be witnessed or approved by a medical practitioner”.

While this rule is not written into law, it is generally accepted as good practice by solicitors who specialise in this area. This means that – where they feel it is appropriate – solicitors can suggest a medical assessment prior to writing or updating a testator’s Will.

How is testamentary capacity determined?

The law surrounding testamentary capacity goes all the way back to the case of Banks v Goodfellow in 1870. This case set out four clear guidelines for determining whether an individual has testamentary capacity, and they are still followed today.

The guidelines state that a testator must:

  • Understand the nature of making a Will and what it means
  • Have an understanding of what is included in their estate
  • Understand who could have a moral claim to their estate
  • Have no disorder or illness that influences their decision making

If someone is deemed to be lacking testamentary capacity, an attorney or deputy may need to be appointed by the court of protection to write a Will on their behalf. This is known as making a statutory Will, and it should be created with the best interests of the testator in mind.

How do you prove a lack of testamentary capacity?

With an ageing population, and increased rates of age-related conditions like dementia and Alzheimer’s, it’s becoming more common for Wills to be challenged in relation to testamentary capacity.

If you believe your loved one didn’t have testamentary capacity at the time of writing their Will, you have the right to dispute it. But this is not an easy process.

You’ll need to consult a medical professional – such as the testator’s GP – in order to demonstrate that they were not of sound mind when the Will was drafted.

In England and Wales, the ‘burden of proof’ lies with those who are challenging a Will. So it will be assumed that the deceased person had testamentary capacity, unless it can be proven otherwise through medical records or other evidence.

If you’re thinking about contesting a Will, our solicitors are here to help you. They’ll gather all the necessary evidence on your behalf and guide you through the process.

To find out more, give us a call or start your enquiry online today.

Note: First4Lawyers offers this information as guidance, not advice. Before taking any action, you should seek professional assistance tailored to your personal circumstances.


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