A Will is invalid if at the time it is executed the person making it (‘the testator’):
If the testator fails any part of the test, the Will is invalid by reason of the testator having lacked the capacity to make a valid Will.
The First Part of The Test
The first part of the test is to do with basic cognition. Consequently, it is usually a part of the test which is passed with ease. However, people are now living longer and dementia is now quite common, so the potential for testators to fail this part of the test is perhaps greater than it ever used to be.
It is important to note however, that a testator merely being diagnosed with dementia or Alzheimer’s does not automatically mean that they lacked capacity to make their Will – plainly, a person can have dementia and still be capable of knowing that they are making a Will and that it will dispose of their property once they are gone.
However, the issue can be one of timing – people’s mental capacity can fluctuate, some days they are better than others. Consequently, a testator may lack capacity one day and be lucid the next. In those circumstances, the Court (i.e. the Judge at trial) has to form a view on whether the Will was executed when the testator was going through a bad patch (the assumption is that the Will is valid unless the contrary is proved).
The Second Part of The Test
The second part of the test is also to do with basic cognition – if the testator is incapable of remembering or understanding what property they own, they cannot form a proper view on how they would like to dispose of it.
However, the test is not absolutely rigorous, a testator need not know the precise extent or value of their property, a broadbrush understanding is acceptable.
The Third Part of The Test
Under the third part of the test, the testator has to be able to recognise who ought (in a moral, everyday sense) to benefit from their estate.
To put that in context, if a testator has children, he/she must be able to remember that he/she has those children and be able to recognise that, ordinarily speaking, the children have a better claim to his/her estate than say the No. 10 cat.
That is not to say that the testator must provide for their children in their Will – the testator is (broadly speaking) entitled to leave their property to whoever they wish – merely that they must be able to appreciate the context in which they are making their Will.
The Fourth Part of The Test
The fourth part of the test can be more complex; here, the Court has to decide if the testator has made their Will as a result of acting under the influence of an illness. That can be tricky, since the symptoms of the illness, i.e. its effects on the testator’s thinking, might have been subtle and confined to particular issues. Furthermore, the testator might have been perfectly rational, plausible and capable in all other respects.
Consequently, the issue is one which has to be determined by the Court with the aid of expert evidence – a psychiatrist will be asked to consider the facts of the case and to give the Court their opinion on whether the Will was made as a result of the effects of the testator’s medical condition.
Context
In contentious probate cases, context is often very important - the Court will want to understand the matrix of facts in which the testator made their Will, and it will take into account such issues as strained relations between relatives, payments having been made by the testator to one of their children but not another in the past, the aid and support provided by one child to an elderly parent and so on.
How can we help?
If you would like to speak to the Contentious Trusts & Probate Team about your case, please contact Ralph Wheeler on ralph.wheeler@porterdodson.co.uk or click below for our dedicated help line.