Challenging a Will on the grounds of capacity

There are a number of grounds you can rely on when challenging a Will when you think it is invalid, and you can click here for details of the most popular grounds available.

The most common ground for challenging a Will is that the testator (the person who made the Will) did not have the requisite mental capacity to make it. In this article we consider the role of expert medical evidence when challenging capacity and look at a recent court decision.

The starting point in a capacity dispute is the presumption that where a Will has been properly executed, the burden of proof will be on those challenging the validity of the Will to produce sufficient evidence to raise suspicion as to its validity. So, when bringing a claim a thorough review of the available evidence is essential. This will include consideration of the solicitor’s Will file and attendance notes, any previous Wills (or Will files), contemporaneous medical records (which could include GP and hospital notes), evidence from the people who witnessed the Will, and evidence from family, friends, and professionals who knew the deceased.

A number of issues arise time and again in these cases. What can the witnesses actually remember? Are the witnesses impartial? At what point can a lack of capacity be demonstrated? Was the testator’s capacity fluctuating? What if the testator had no formal diagnosis of lack of capacity?

The relevant legal test regarding the capacity required to make a Will was originally set out in the Victorian age, in the case of Banks v Goodfellow (1870), and that law still remains good over 150 years later.  In summary, the requirements are that the deceased:

  1. Understood the nature of making a will, and its effect;
  2. Understood the extent of the property they are giving away;
  3. Comprehended those people he/she would usually be expected to provide for; and
  4. Had no disorder of the mind that would have affected their dispositions.

The test was considered in the 2024 case of  Leonard v Leonard, where the deceased had passed away leaving four children from his first marriage (the Claimants in the case) and his second wife and her family (who were the Defendants).  In 2007 the deceased had made a Will providing for his second wife and four children. That Will was revoked in 2015 by a new Will, which  although it still made provision for his four children, was less favourable to them.

The children claimed that their father didn’t have mental capacity when he made the change and challenged the new Will. The court applied the test of Banks v Goodfellow and concluded that the deceased had lacked testamentary capacity. The 2015 Will was therefore declared invalid.

At the trial the Court considered evidence from two medical experts. The experts relied on contemporaneous medical records as neither had been able to examine the deceased in his lifetime. Each drew differing conclusions about the deceased’s mental capacity.

The Court commented that:

‘…the criteria in Banks v Goodfellow are not matters that are directly medical questions, but are matters for common sense judicial judgment depending, as they do, on upon the entirety of the evidence, including, importantly, the complexity of the relevant will… ultimately it is for the court and not an expert witness to determine what, if any, inferences should be drawn from documentary and other evidence when seen in its proper context.’

The case demonstrates that medical evidence should be considered alongside, not above, other available evidence, including the Will file, witness evidence, and contemporaneous documents, and it will be the evidence as a whole that the Court will consider.

How we can help you

If you would like to discuss challenging a Will on the basis of mental capacity or any other grounds then please contact our free legal helpline or email brief details of your case to us.

Call 0333 888 0409 or email us at [email protected] 

Challenging a Will on the grounds of capacity