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contesting a will

Contesting a Will – Testamentary capacity

For a will or codicil to be valid, the person making the will (known as the testator) must have testamentary capacity.

Testamentary capacity is different to general mental capacity. It’s a specific test which requires that the testator understands:

  • The size and nature of the estate (i.e. what their assets are and also their value);
  • Those people for whom they should consider making financial provision in their will e.g. children, a spouse or partner; and
  • The nature of the act of making a will and its effect

The testator must also not have not have suffered from any “disorder of the mind” or “paranoid delusions” which might poison their affections and impact upon how they make their will or codicil. (See also our page on Contesting a Will – Fraud and Forgery.)

Ill health

If there are any concerns about a testator’s health at the time when they made their will or codicil, this may require further investigation.

It’s not unusual for certain illnesses, medication or treatment to potentially affect testamentary capacity. For example, if someone has severe dementia they may not be able to recall all of the people who they should take into account when making a will or the value of their estate.

However, it shouldn’t be assumed that, just because somebody suffers from a health issue or they are potentially vulnerable that their will is automatically invalid. It will depend upon the circumstances of each case.

If you’re concerned about the validity of a will or codicil, you should consider whether or not any of the above points may have applied at the time when the will or codicil was made.

You can contact our specialist team of solicitors who will be able to advise you further about this.

We offer an initial free telephone consultation (limited to 30 minutes).

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