Anyone who is over the age of 18 and who is of ‘sound mind’ (that is, has sufficient mental capacity) may make a will. However, if someone believes that the testator was not of sound mind. Therefore did not have the mental capacity to know what they were doing when they made their will, they may wish to start the process of contesting a will.
Lack of Capacity
In fact, this reason for contesting a will is increasing, and it may have something to do with the number of people developing various forms of dementia. As people live longer, the chances of them developing a disease such as Alzheimer’s, for example, increases. It seems to follow, then, that there may be a case to contest some wills made be these people. However, it will all depend on when they made the will – before or after their diagnosis, for example.
It’s not just dementia that means someone has a lack of capacity. This problem could come from a head injury, substance abuse, other mental illnesses, or even other medical conditions. The way that determines if someone has lack of capacity or not goes back to Banks-VS-Goodfellow in 1870. The story is that the testator had been confined to an asylum. But when he was released he developed a severe fear that he was being followed everywhere he went. Despite this, he made a will (and managed his own financial affairs). When he died, the court determined that his will was valid. Because, although it was clear that he was suffering from some kind of mental illness, it had had no bearing upon the will itself. That is, if he had not had the illness, the will would have been the same.
Court rules
In general, a court will assume that someone has the capacity to make their will. Unless the court is otherwise informed – with evidence – that this was not the case. The burden of proof falls on the person who made the allegation. Therefore clear evidence should be supplied, including statements about the testator’s general behaviour. Which can then be used to see how far the will strayed from their usual tone. Also information from the solicitor who prepared the will (assuming there was one), statements from friends and family, and evidence from medical practitioners.
