Change location v

Contesting wills due to testamentary capacity

It is not uncommon for a benefactor or family member to decide to contest a will because they believe the deceased did not hold adequate testamentary capacity to create the document.

Testamentary Capacity is the ability to understand the morale obligations of creating a will, including how estate decisions will impact on family members and other dependents after the will maker’s death.

Normally, a person in “sound mind” is free to leave their property to any person or organisation they wish. However, this can lead to family provision claims if they do not adequately provide for each person who has, at any time, been financially dependent on the deceased.

In some cases, an inheritance dispute will occur because an individual or group of people believe the person who created and signed the will did not have the mental capacity to make the decisions relevant to succession planning. If this is the case, contesting the will can result in the Supreme Court setting the document aside and using either an older will or an official succession formula to distribute the deceased’s estate.

How does the Supreme Court measure testamentary capacity?

If someone has chosen to contest a will due to a lack of testamentary capacity, the plaintiff must be able to prove that the deceased lacked the knowledge or understanding required to create the will.

This can be proven by obtaining an opinion, preferably in writing, from the person’s treating doctor. Additionally, the solicitor used to witness and create the will should also be able to provide their opinion on the capacity of the deceased.

The Supreme Court will take a number of factors into consideration when deciding on a person’s testamentary capacity. This includes their understanding of moral obligation, their mental health and any possible external pressures.

In some cases, it will be uncovered that the will reflects the wishes of a beneficiary more than the deceased. This can occur when an individual lacking mental capacity is coerced to change their will through manipulation.

While it not uncommon to contest a will due to a lack of testamentary capacity, not many wills are set aside on these grounds. This is because any will that was prepared by a competent solicitor will have been subject to various controls and measures to satisfy the knowledge that the will-maker held the requisite testamentary capacity.

It can therefore be challenging to make a successful inheritance dispute based on this claim. If you believe a family member has left a will made without the legal capacity, you first step should be to contact a contesting wills lawyer to help build your case.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

Website Design by MediaSmiths

Your location is currently: