Testamentary capacity

Where a person lacks the mental ability to prepare a will (‘testamentary capacity’), the Court may authorise the making, alteration or revocation (i.e. cancellation) of a will on behalf of that person.

Before a Court will do this it must be satisfied that:

  1. the person lacks testamentary capacity,
  2. the proposed will, or the alteration or revocation would accurately reflect the person’s likely intentions if they had testamentary capacity, and
  3. it is reasonable to do so given the circumstances.

When a court makes or alters a will on behalf of another, the will is known as a ‘statutory will’. Statutory wills may be necessary for persons who have lost their ability to make a will, for example from suffering strokes, dementia or brain injuries, particularly those with sizeable estates.

There are several factors that the Court must consider before deciding whether to make a statutory will or to revoke a previous will. These factors include evidence of the wishes of the person, the likelihood of them obtaining testamentary capacity, previous wills, interests of beneficiaries and family members, and the size of the estate.

The first issue to be determined by the Court is whether the person lacks testamentary capacity. A person is said to have testamentary capacity when they understand the nature of a will and its effect (i.e. understands what a will is and what it does), the extent of their property (i.e. what assets they have and how they own them), and who might be deserving of their estate and who could make a claim on them.

To determine this, the Court will examine evidence regarding the person’s mental abilities. This may come from evidence given by doctors, geriatricians, psychologists, psychiatrist, social workers, and government bodies such as Guardianship Boards and Tribunals.

If it is considered that the person lacks testamentary capacity, then the Court must next try to establish what the person would likely have included in their will had they been able. The Court will often differentiate between a person who once had testamentary capacity and then lost it, and a person who never had such capacity. If a person once had capacity they will look at that person’s wishes at that time. They may refer to such person’s previous wills (if any) or statements they may have made.

The Court will also consider what would occur if the person made no Will (i.e. died ‘intestate’). The Court will look at the relationships of that person with friends and family members, and will aim to prepare a will that takes into account those relationships and adequately protects those persons.

The Court will also look at the size of the person’s estate. It is generally thought that a person with a valuable estate is more likely to make a will rather the die intestate, and so the Court may be more inclined to order the preparation of a Will for a person with significant assets.

Get in touch with us

If you have a friend or family member who you believe needs a Will prepared, altered or revoked, but may lack the testamentary capacity to do so, you may be able to apply to the Court for their assistance. We at Turner Freeman can assist and represent you, or the relevant friend or family member, with such an application.