Challenging a Will on grounds of capacity

By Sarah Oakley

A person making a Will must have testamentary capacity, that is they must have the ability to understand what they are doing and the impact it will have.

The test for capacity states that the individual making a Will must:

• Understand the nature of making a will and its facts.
• Understand the extent of the property they are disposing of.
• Understand those who would have a claim on the Estate.
• Have no disorder of mind.

To successfully challenge a Will, you need to demonstrate that the above test was not met and also that the person making a Will did not understand the following:

• They authorised the completion of a Will and did not understand the consequences.
• They did not understand the assets and/or the Estate they own.
• They did not understand who they were leaving their assets and/or Estate to.

You may believe a Will is invalid due to a lack of capacity if:

• The Will does not provide for you or others who would have expected to benefit.
• The Will contradicts earlier promises or agreements.
• A concern that the Will does not reflect the deceased true wishes.
• You are aware that the deceased was suffering from medical conditions affecting their capacity.

To challenge a Will, initial investigations should be made early and ideally before a Grant of Probate has been issued and the Estate has been administered. The Court consider all relevant evidence to form an understanding of events which took place when a disputed Will was made. If you are concerned about the capacity of the deceased when a Will was made, it is important that you obtain legal advice as soon as possible.

For further information, please contact Sarah Oakley at Sampson Coward on 01722 410664 or This email address is being protected from spambots. You need JavaScript enabled to view it.

 Sarah Oakley