There are several key principles and steps applicable to contesting a will due to a perceived lack of mental capability, or to use the correct legal terminology, “testamentary capacity”.
The Test According to Banks v Goodfellow
The test applicable to determine testamentary capacity was laid down in the case of Banks –v- Goodfellow (1870) LR5 WB 549, as follows:
“It is essential to the exercise of such a power that a testator:
- Shall understand the nature of the act and its effects;
- Shall understand the extent of the property of which he is disposing;
- Shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
Ultimately, this will be a question of medical evidence and if there is a suggestion that capacity is doubted, we will obtain and then carefully review copies of medical records, social care records and any other relevant files to see whether any capacity issues were recorded by the GP, treating medical consultants and social services.
The Golden Rule
“The Golden Rule” as it is known in law, is not actually a cast-iron rule as such, but is rather more a code of guidance as to best practice for solicitors.
When dealing with the elderly or people with a history of mental capacity issues, it is best practice to ask a medical practitioner to witness the Will or provide a contemporaneous opinion on mental capacity. The solicitor would normally also discuss the terms of the Will and the reasons for any changes to them, and to take instructions from the maker of the Will in the absence of any of the beneficiaries.
However, it is important to note that just because “The Golden Rule” may not have been followed in a particular case, does not automatically mean that the will is invalid. Careful and informed scrutiny of all the facts, circumstances and evidence will still be necessary.
Consideration must also be given to the general issues that apply to most will disputes, guidance on which can be found here. For further information on contesting a Will and to find out how we can help you, please contact our Will and Trust Disputes Team on 01279 755777 or get in touch with Daniel Winter, Partner in our Will and Trust Disputes Team.
Nockolds Solicitors is delighted to announce that the firm has won ‘Law Firm of the Year’ for ‘Contested Trusts and Probate’ at the 2015 and 2016 Lawyer Monthly Legal Awards.