Navigating the Complexities of Capacity Challenges in Will Disputes

Losing a loved one is difficult enough, but inheritance disputes can add another layer of stress. One common issue is when someone questions whether the person who made their will (the testator) had the mental capacity to do so. This is called a “capacity challenge,” and it’s becoming more common as people live longer and age-related cognitive problems become more frequent.

What Does “Capacity” Mean?

When we talk about “capacity” in will disputes, we’re asking if the person making the will truly understood what they were doing. They need to understand:

• That they were making a will.
• What they owned (their assets).
• Who they might reasonably be expected to leave things to (their potential beneficiaries).

• It’s not about whether the will seems “fair” to everyone; it’s about whether the person making it understood what they were doing at the time.

Why Are Capacity Challenges Becoming More Common?

As people live longer, conditions like dementia become more prevalent. These conditions can affect someone’s memory, judgment, and ability to understand things, which can lead to questions about their capacity to make a will.

The Legal Test for Capacity

The legal test for capacity, often referred to as the Banks v Goodfellow test, remains the cornerstone. However, applying this test in the context of modern medical understanding of cognitive decline can be quite complex.

What Makes These Cases So Tricky?

These cases can be complicated for several reasons:

• Different Conditions: Dementia, strokes, Parkinson’s disease, and traumatic brain injury can impact capacity, impair cognitive functioning, affect memory, judgment, and understanding.

• Good Days and Bad Days: Some people have times when they’re clearer than others and experience periods of fluctuations making it hard to know what their capacity was like when they signed the will.

• The Person is Gone: The person who made the will is no longer here to explain their thinking, so solicitors and the Courts have to rely on other evidence.

How Do These Challenges Work?

When someone challenges a will based on capacity, the Courts will consider evidence such as:

• Medical Records: These can show if the person had any conditions affecting their mental and cognitive abilities.

• Witness Statements: People who knew the person making the will might give statements about their behaviour and understanding.

• Solicitor’s Notes: If a solicitor helped with the will, their notes can be important evidence.

• Expert Evidence: Medical experts play a crucial role in capacity challenges, providing assessments of the testator’s cognitive abilities at the time of will execution. However, interpreting expert evidence can be complex, especially when dealing with nuanced medical conditions.

The Case of Leonard v. Leonard [2024]

This case provides a recent example of the complexities of will challenges based on capacity and confirms that the old rules laid down in Banks v Goodfellow are still relevant and appropriate to apply. It also clarified the role of medical experts and that whilst their opinions are indeed valuable, such opinions are only one part of the puzzle and that all evidence should be considered as a whole, with the Court making the final decision.

Leonard v. Leonard also highlights that the role of the will draftsperson i.e., the solicitor who drafted the will, is an important one. If they believed at the time that the person making the will had capacity and they showed an awareness of any capacity issues that may have existed and dealt with them appropriately, it would take extremely strong evidence of incapacity to overturn a will.

There is a great emphasis on the need to assess capacity on a case-by-case basis so it’s not a broad-brush approach that is applied.

What Can You Do?

If you’re concerned about a will and whether the person making it had capacity, please get in touch with us so that we can discuss your options with you. We can assess your chances of pursuing a claim and provide you with honest advice, as well as clarify the necessary procedures and timelines that you may have to follow. We can also talk you through the process of gathering the necessary evidence.