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Making a Will and Mental Capacity

In order to make a Will in England or Wales, the law requires you to understand fully what you are doing and its implications.

This is known as having “testamentary capacity”, which is a special category of capacity. Broadly, in relation to making a Will, it relates to whether a person is capable of understanding:

  • What making a Will means and its effect
  • The extent of their assets
  • If there are people who may have a moral claim on the estate

In addition, the person must not be suffering from any disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.

This was established by a famous case called Banks v Goodfellow in 1870! However, the 2021 case called Re Clitheroe confirmed that the criteria from 1870 still apply today.

So, what does this mean for you as a client?

Provided that the Will has been executed correctly and appears rational then the default position of the Court is that they assume that the person did have capacity and that the Will is valid. It is the responsibility of the person objecting to the Will to provide sufficient evidence to the Court to challenge this. Once this hurdle has been overcome, the burden of proof then switches to the Executor proving the Will to provide evidence that the Will maker did have capacity.

Secondly, it means that on occasions we may not be able to act for you in preparing a Will for you straight away. In order to prepare a Will for you, we may ask you to provide a report from your doctor or from a specialist capacity assessor before we can move forward.

If there is a loss of mental capacity and it is considered necessary by the Court that someone be authorised to sign a Will on that person’s behalf, then a Statutory Will can be authorised by the Court of Protection. However, this can be a long and expensive process.

Our advice is not to delay making a Will or making a change to an existing Will. If you are worried about capacity, please let us know and we can guide you on next steps.

Further Reading:

What Happens To Your Property If You Lose Mental Capacity?

Court of Protection – What do you do if a family or friend loses capacity but does not have a Lasting or Enduring Power of Attorney

Appointment of executors and consideration of their capacity

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Get in Touch

Charlotte Fox offers a fixed fee initial meeting of one hour to discuss your personal circumstances, your options and your next steps, at a cost of £95 (inc VAT).

Charlotte will meet you in our Reading Berkshire office, alternatively meetings can occur by telephone. If you would like to meet with her please telephone the office so that an appointment can be arranged.

Charlotte is a Partner and Solicitor at Barrett & Co specialising in Private Client matters.

"barrettandco" and "Barrett & Co" are trading names of Barrett & Co Solicitors LLP, a Limited Liability Partnership incorporated in England and Wales under registration number OC356263, with registered office at Advantage House, 87 Castle Street, Reading, Berkshire, RG1 7SN. Barrett & Co Solicitors LLP is authorised and regulated by the Solicitors Regulation Authority (SRA Number 549694).

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