When a person makes a Will that does not provide the kind of benefits that were expected, or historically promised, it is natural to suspect that the will maker may have lacked capacity.
But the courts are slow to accept that what otherwise appears to be a perfectly valid world is tainted by a lack of proper understanding. Effectively, the courts will presume that the Will is valid, and it is up to those who wish to challenge the Will to prove that there was a lack of capacity.
This might be a difficult process, especially if the Will was made using the services of a solicitor or professional will drafter.
It is necessary to examine the state of the Will maker’s mental health in the run-up to, and at the time of, the creation of the Will. Usually, any developments in the health of the Will maker after this time are generally irrelevant to the issue.
To be capable of making a Will, any person must be able to understand that, in doing so, they are giving away their assets after death. If they cannot understand this, then they do not have capacity.
Further they must at least have a general understanding of the assets at their disposal. If they are incapable of appreciating what they own, then they are also incapable of making a will. A detailed knowledge of what is available to give away is not expected, but an understanding in the most general terms is necessary.
It is also essential to be able to appreciate those people who may at least have a moral claim to provision from the estate. Usually, it is perfectly okay to omit to provide for them, provided that a mental health condition did not prevent them from being considered.
To develop this a little further, if the Will maker is affected by a mental health condition that poisons his affections against any person whom he otherwise would make provision for (but for that condition), then the will maker does not have capacity.
So, investigations into these issues should focus upon whether the Will maker was suffering from some mental illness, or perhaps the more temporary influence of alcohol or drugs, that would prevent him from understanding the act of making a will, or from understanding what he could give away, or who he should give it away to.
Should these matters progress to court, then it may well be necessary to obtain medical evidence to support the challenge. The first port of call should be the will maker’s GP. If this is not possible, then the opinion of an expert may be necessary, but it should always be remembered that, when the evidence about these issues does not come from a doctor that had the benefit of examining the Will maker, the courts will want to see very strong evidence of a lack of capacity.
It should also be remembered that some conditions are more permanent than others. Dementia may be a gradually worsening condition that affects that will maker for the rest of his life, but certain other conditions create temporary periods of incapacity. Where the seriousness of the condition fluctuates, careful evidence is required of the particular frame of mind of the Will maker at the point in time when the world was signed. Some people have capacity on some occasions, but not at all the times.
Enquiries should also be made as to how the Will came to be produced. If this was produced professionally, then the solicitor or willdrafter should make available their file of papers for examination. It should be investigated whether an approach was made to the Will maker’s GP to see if he or she had capacity. Likewise, the personal assessment of the will drafter as to his client’s capacity is also essential.
