Mental capacity is one of the most important legal considerations when assessing the validity of a will. Questions about capacity often arise when:
A will is being challenged after death
A loved one is preparing a will and there are concerns about dementia or cognitive decline
An executor needs to understand whether a will is legally valid
If you have concerns about mental capacity in wills or probate, our experienced Wills and Probate team can provide clear legal guidance.
The Mental Capacity Act 2005
Under the Mental Capacity Act 2005 (MCA), the starting point is that a person is presumed to have mental capacity unless it can be shown otherwise.
This means that, generally, capacity is assumed unless there is evidence to prove that an individual lacks it.
However, when it comes specifically to making a will, recent case law has confirmed that the MCA has not replaced what is known as the common law test for testamentary capacity.
The Common Law Test for Testamentary Capacity
To execute a valid will, the testator (the person making the will) must understand:
That they are making a will and the effect the will is intended to have.
The extent of their estate, including property, bank accounts, stocks and shares, or other assets.
The claims of potential beneficiaries, meaning they are aware of those who might reasonably expect to benefit, such as a spouse or children.
That they are not suffering from a mental disorder which prevents them from making decisions about how their estate should be distributed. For example, a person with dementia who is not lucid at the time of signing the will may lack capacity.
Unlike the MCA framework, the common law test does not automatically assume capacity at the outset.
Burden of Proof in Capacity Disputes
If a will has been properly executed and appears rational on its face, the court will generally presume capacity in line with the Mental Capacity Act 2005.
However, if someone challenges the will:
The objector must first raise a real doubt about the testator’s capacity.
If such doubt is established, the executor must then prove that the testator had capacity at the time the will was executed.
This shifting burden of proof is an important aspect of contentious probate cases involving mental capacity.
Conclusion: Capacity in Probate Matters
Mental capacity in wills and probate cases can be legally complex. Current case law indicates that capacity will generally be presumed unless formally challenged. If challenged, the common law test for testamentary capacity will apply.
If you are concerned about mental capacity, challenging a will, or defending a probate claim, our Wills and Probate team can provide tailored legal advice. Please contact us to arrange an appointment.
