A will is only valid if the person who made it had the mental capacity to do so at the time it was signed. Where someone was suffering from dementia or another condition affecting their mental function, their capacity to make a valid will may be in question. This is one of the most common grounds on which wills are challenged in England and Wales.
Testamentary capacity is the legal term for the mental ability required to make a valid will. The test was established by the Court of Queen's Bench in Banks v Goodfellow in 1870 and remains the applicable test today. A person making a will must understand the nature of making a will and its effect, understand the extent of the property they are disposing of, understand the claims of those who might reasonably be expected to benefit, and not be suffering from any disorder of the mind that poisons their affections or perverts their sense of right.
A diagnosis of dementia does not automatically mean a person lacked testamentary capacity when they signed a will. Dementia is a progressive condition and capacity can fluctuate. A person in the early stages of dementia may still have had capacity to make a will, while a person in a more advanced stage may not. The question is whether they had capacity specifically at the time the will was executed, not at some other time.
Medical records from around the time the will was made are central to a capacity challenge. These include GP notes, consultant reports, hospital admission records, and any cognitive assessments. The evidence of people who knew and observed the deceased around the time of execution is also valuable. If the will was prepared by a solicitor, the solicitor's file and their contemporaneous notes about the testator's condition may be obtained through a Larke v Nugus request.
The starting position is that a properly executed will is presumed to be valid. The burden is on the person challenging the will to raise evidence sufficient to call the capacity into question. Once that evidential hurdle is cleared, the burden shifts to those seeking to uphold the will to prove that capacity existed.
The standard of proof is the balance of probabilities: you need to show it is more likely than not that the testator lacked capacity. The evidence does not need to be overwhelming, but medical evidence directly relevant to the time of execution is essential. Challenges without supporting medical evidence are unlikely to succeed.
A will can be challenged if the maker lacked testamentary capacity at the time of execution, including where they had dementia. A diagnosis alone is not sufficient. The challenge must be supported by medical evidence directly relevant to the time the will was signed. A probate litigation barrister can assess the strength of the evidence and advise on whether a challenge is viable.
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