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A Powerful Legal Ground for Contesting a Will in the UK: Lack of Mental Capacity

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Lack of Mental Capacity is a powerful legal ground for contesting a Will in the UK, asserting that the deceased (the testator) lacked the necessary cognitive ability to understand the effects of their actions when the Will was signed. The legal standard applied is the Banks v. Goodfellow test, which requires the testator to comprehend the nature and effect of making a Will, the extent of their property, and the moral claims they ought to consider. Evidence for such a claim is primarily based on comprehensive medical records and testimony from the drafting solicitor and witnesses, often necessitating expert legal and medical evaluation.

mental capacity

What Does “Mental Capacity” Mean in Law?

In UK law, the ability to make a valid Will is governed by a long-established common law test, distinct from medical definitions of capacity. This test stems from the landmark 1870 case, Banks v. Goodfellow.

The Banks v. Goodfellow Test

To have the requisite mental capacity (often called Testamentary Capacity) when making or altering a Will, the person (the testator) must satisfy three key requirements:

  • Understand the Nature of Making a Will: The testator must comprehend that they are signing a legal document that dictates how their property will be distributed upon their death.
  • Know the Extent of Their Property: They must have a general awareness of the assets (money, property, investments) they own and are disposing of.
  • Appreciate the Moral Claims: Crucially, the testator must be able to recall and understand the persons who might naturally expect to benefit from the Will (e.g., family members, close dependents) and be capable of making a rational decision as to whether to include them.

If, due to illness or cognitive decline, the testator fails any of these three requirements, the Will can be successfully challenged as invalid.

When Does Lack of Mental Capacity Become a Valid Legal Challenge?

The legal challenge is not simply based on the presence of a cognitive illness; it focuses on the testator’s state of mind at the specific time the Will was executed.

Cognitive Illnesses Are Red Flags, Not Proof

Conditions like dementia, Alzheimer’s disease, advanced age, or the effects of medication are common factors that give rise to claims of lack of capacity. However, the mere diagnosis of dementia, for example, is not proof of incapacity. A person might experience “lucid intervals” where their cognitive function returns temporarily. If the Will was made during such a lucid interval, it may still be valid.

This is why timing is so critical. Your legal challenge must establish that the incapacity existed at the moment the Will was signed. If the Will was drafted over several weeks or months, the testator should have had capacity when they gave instructions and when they executed the final document.

The Problem with the “Golden Rule”

Solicitors preparing a Will for an elderly or seriously ill client are strongly advised to follow the “Golden Rule.” This rule dictates that a medical practitioner should examine the testator immediately before the Will is signed and provide a written opinion confirming their testamentary capacity.

When a Will is challenged, if the drafting solicitor failed to follow the Golden Rule, it creates a significant red flag and can increase the weight placed on the challenging party’s evidence.

Building Your Case: The Power of Evidence

A successful claim of lack of capacity requires a meticulous and objective approach. Because the testator is unable to speak for themselves, your case relies on external, contemporary evidence.

1.Medical Evidence is Paramount

The most powerful evidence comes from the testator’s medical history. Your legal team will seek comprehensive access to:

  • GP and Hospital Notes: Showing the progression of cognitive decline, prescribed medications, and physician assessments of the testator’s mental state around the date the Will was signed.
  • Mental Capacity Assessments: Any formal assessments conducted by psychiatrists or specialist medical

2. The Solicitor’s File and Witness Statements

The file kept by the drafting solicitor is crucial. It should contain records of their meetings with the testator, including their assessment of mental capacity and any notes regarding the testator’s knowledge of their property and family claims. Statements from witnesses who were present at the signing are also required.

3. Lay Evidence

Statements from family members, friends, or care providers who had regular contact with the deceased can provide powerful, anecdotal evidence about their daily confusion, memory loss, and difficulty understanding simple financial matters during the relevant period.

The necessity of gathering this complex evidence often brings legal and medical considerations together. The process of obtaining medical records and formal opinions on testamentary capacity is subject to stringent rules within the UK legal system, ensuring both accuracy and patient privacy. You can find detailed, official guidance on the legal procedures for requesting and handling such sensitive information from The Law Society’s practice notes on testamentary capacity.

The Emotional Toll: Seeking Justice, Not Revenge

Contesting a Will based on mental capacity can be emotionally draining. You are essentially bringing evidence that your loved one was not themselves, and this can feel like disloyalty.

We want to assure you that your quest is not an act of revenge, but an act of deep respect. You are fighting to ensure that your loved one’s final, coherent wishes, the wishes they held before their mental capacity was compromised, are upheld. You are seeking to correct a profound wrong that was inflicted upon them while they were vulnerable. Read our guide for more information on how to cope with the emotional stress of contesting a will: The Emotional Toll of Contesting a Will and How to Cope: Legal Grounds and When Not to Contest a Will

Our compassionate expert team works diligently to separate the emotional pain from the legal facts. We provide the clear, objective, and authoritative guidance needed to navigate this deeply sensitive area, ensuring you are empowered to challenge the Will effectively and secure a just outcome.

Empowering Your Right to Fairness

Lack of Mental Capacity is a powerful, well-defined legal ground for contesting a Will, but it demands speed and specialist expertise. If you have concerns about a vulnerable loved one’s final Will, do not delay. The passage of time makes gathering the necessary medical and testimonial evidence significantly more difficult.

Empower yourself with clear, objective advice.

Get your free, no-obligation case assessment. Call 08002980029 or visit contestawilltoday.com


FAQs

1. Who holds the burden of proof in a Will challenge based on Lack of Mental Capacity?

Initially, the law presumes an adult had the capacity to make a Will, meaning the challenger (you) must present enough compelling evidence (like medical records or witness statements) to raise a “real doubt” about the deceased’s capacity. If you succeed in raising that real doubt, the burden of proof then shifts to the party defending the Will (the propounder, usually the Executor) to definitively prove, on the balance of probabilities, that the deceased did have the required capacity when the Will was signed.

2. Can the costs of obtaining the deceased’s medical records and expert opinions be recovered?

The cost of obtaining a deceased person’s GP records is typically free under the Access to Health Records Act 1990. However, the costs associated with getting expert medical opinions from specialists (like a geriatric psychiatrist) or obtaining extensive hospital records can be significant. If your Will challenge is successful, the court often orders the losing party (the estate, or the defender of the Will) to pay some or all of your legal costs, which would include these necessary investigation expenses.

3. If a person lacked mental capacity, why was a Statutory Will not made on their behalf?

A Statutory Will is a special Will drafted by the Court of Protection for an individual who currently lacks the mental capacity to make one themselves. It is often required if the person has never made a Will, or if their existing Will is severely outdated. If the deceased lacked capacity but did not have a Statutory Will, it means no one made a successful application to the Court of Protection before their death. In such a scenario, if the contested Will is invalidated, the estate would be distributed according to either their previous valid Will or the Rules of Intestacy (if no previous valid Will exists).

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Frequently asked questions.

Disputes over wills can arise in several circumstances, including:

  • Testamentary capacity: The person who made the will (known as the testator) must have had the mental capacity to understand what they were doing and the consequences of their actions. This means that they must have been able to understand the nature and extent of their property, the people they were giving their property to, and the people they were excluded from their will.

 

  • Valid execution: The will must have been executed correctly under the law. This means it must be in writing, signed by the testator, and witnessed by two independent witnesses.

 

  • Undue influence: The testator must have made the will freely and without any pressure from others. The will may be invalid if someone was unduly influenced to make a will. Undue influence can occur when someone takes advantage of a testator’s vulnerability, such as if the testator is elderly, ill, or has a mental disability.

 

  • Fraud or forgery: If the will was forged or if someone fraudulently induced the testator to make the will, the will may be invalid.

 

Claims against a will must usually be made within six months of the grant of probate being issued. This is the legal document that gives the executor the authority to administer the estate. If a claim is not made within this time, it may be too late to challenge the will.

As such, executors often wait until this six-month period has expired before distributing the estate. This is to avoid having to distribute the estate and then having to take it back if a successful claim is made against the will.

Here are some examples of how these disputes can arise:

  • A family member may dispute a will if they believe that the testator did not have the mental capacity to make a will. For example, if the testator was suffering from dementia or Alzheimer’s disease at the time the will was made.
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A family member may dispute a will if they believe that it was not executed correctly. For example, if the will is not signed by the testator or if it is not witnessed by two independent witnesses.

 

  • A family member may dispute a will if they believe that they were unduly influenced to make the will. For example, if a caregiver or another family member pressured the testator to make the will in their favour.

 

  • A family member may dispute a will if they believe that it was forged or if someone fraudulently induced the testator to make the will. For example, if someone forged the testator’s signature on the will or if someone lied to the testator about the contents of the will.

If you are thinking about disputing a will, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.



Types of Trusts

Many different types of trusts can be set up, depending on your specific needs and goals. Some of the most common types of trusts include:
Bare Trusts: A bare trust is a simple type of trust in which the trustee holds the assets for the benefit of the beneficiary. The beneficiary is entitled to the income and capital of the trust as soon as they are old enough to receive them.

Interest in Possession Trusts: An interest in possession trust is a type of trust in which the beneficiary is entitled to the income from the trust immediately, but not to the capital until a later date. This type of trust is often used for minor beneficiaries or for beneficiaries who are not yet responsible enough to manage their own money.

Discretionary Trusts: A discretionary trust is a type of trust in which the trustee has the discretion to decide how and when to distribute the income and capital of the trust to the beneficiaries. This type of trust is often used for families with multiple beneficiaries or beneficiaries with special needs.

Accumulation Trusts: An accumulation trust is a type of trust in which the income from the trust is accumulated and not distributed to the beneficiaries until a later date. This type of trust is often used to save for a specific purpose, such as a child’s education or a retirement fund.

Mixed Trusts: A mixed trust is a type of trust that combines elements of different types of trusts. For example, a trust may be a discretionary trust for one beneficiary and an interest in possession trust for another beneficiary.

Settlor-Interested Trusts: A settlor-interested trust is a type of trust in which the settlor (the person who creates the trust) retains some interest in the trust assets. For example, the settlor may retain the right to receive income from the trust or to appoint the trustee.

Non-Resident Trusts: A non-resident trust is a type of trust that is created and governed by the laws of a country other than the country where the settlor or beneficiaries reside.
Which type of trust is right for you will depend on your specific needs and goals. It is important to consult with an estate planning attorney to discuss your options and choose the type of trust that is best for you.
Here are some examples of how different types of trusts can be used:
A bare trust can be used to hold assets for a minor child until they reach the age of majority.

An interest in possession trust can be used to provide income to a beneficiary who is not yet responsible enough to manage their own money.

A discretionary trust can be used to manage assets for a family with multiple beneficiaries or for beneficiaries with special needs.

An accumulation trust can be used to save for a specific purpose, such as a child’s education or a retirement fund.

A mixed trust can be used to achieve a variety of different goals, such as providing income to one beneficiary and preserving capital for another beneficiary.

A settlor-interested trust can be used to retain some control over trust assets after the settlor has created the trust.

A non-resident trust can be used to reduce estate taxes or to protect assets from creditors.
It is important to note that this is just a brief overview of the different types of trusts. There are many other types of trusts available, and each type of trust has its own specific features and benefits. For more information please visit www.gov.uk/trusts-taxes/types-of-trust

Inheritance trust disputes can be complex and varied, but some common scenarios include:

  • Disputes over the validity of the trust: This can happen if the settlor (the person who created the trust) does not have the mental capacity to create a trust, or if the trust deed was not executed correctly.

 

  • Disputes over the interpretation of the trust deed: If the trust deed is poorly drafted or unclear, it can lead to disputes between the trustees and beneficiaries about how the trust should be administered.

 

  • Disputes over the appointment or removal of trustees: Trustees have a legal duty to act in the best interests of the beneficiaries. If a trustee is not acting in the best interests of the beneficiaries, the beneficiaries may apply to the court to have the trustee removed.

 

  • Disputes over the investment of trust assets: Trustees have a legal duty to invest trust assets prudently. If a trustee makes investments that are too risky or that lose money, the beneficiaries may sue the trustee for breach of duty.

 

  • Disputes over the distribution of trust assets: Trustees have a legal duty to distribute trust assets to the beneficiaries in accordance with the terms of the trust deed. If a trustee distributes trust assets incorrectly, the beneficiaries may sue the trustee for breach of duty.

 

Here are some specific examples of inheritance trust disputes that have occurred in the UK:

  • In one case, a beneficiary disputed the validity of a trust deed on the grounds that the settlor (the person who created the trust) did not have the mental capacity to create a trust at the time it was set up.

 

  • In another case, a beneficiary sued the trustees for breach of duty after the trustees made a number of risky investments that lost money.



  • In a third case, a beneficiary sued the trustees for breach of duty after the trustees distributed trust assets to the beneficiaries in a way that was not in accordance with the terms of the trust deed.

 

Other possible disputes include:

  • A beneficiary was expecting more than what is set out in the trust document. This may be because the beneficiary had a reasonable belief that they would receive more, or because the trust document is unclear about the beneficiary’s entitlement.

 

  • The individual who set up the trust was provided with negligent or misleading advice. If the settlor was not properly advised about the consequences of setting up a trust, or if they were given incorrect information, they may be able to challenge the trust.

 

  • The trust document is either incomplete or unclear about the wishes of the deceased. If the trust document is incomplete or unclear, it can lead to disputes between the trustees and beneficiaries about how the trust should be administered.

 

  • A trustee acts against the best interests of the beneficiary or doesn’t administer the trust correctly. Trustees have a legal duty to act in the best interests of the beneficiaries. If a trustee breaches their duty, the beneficiaries may sue the trustee.

If you are involved in an inheritance trust dispute, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.

Contesting a will is challenging the validity of a will. This can be done on a number of grounds, including.

  • The testator (the person who made the will) did not have the mental capacity to make a will.
  • The will was not executed correctly, i.e., it was not signed by the testator or witnessed by two independent witnesses.
  • The testator was unduly influenced to make the will.
  • The will was forged or fraudulent.

 

Contentious probate is any dispute about the administration of a deceased person’s estate. This can include disputes about

  • The validity of the will.
  • The interpretation of the will.
  • The appointment or removal of executors.
  • The distribution of the estate assets.
  • The management of the estate.
  • In the UK, contentious probate is dealt with by the High Court.

 

The main difference between contesting a will and contentious probate is that contesting a will is specifically challenging the validity of the will, while contentious probate can include a wide range of disputes about the administration of an estate.

Here is an example:

Contesting a will: A beneficiary challenges the validity of a will on the grounds that the testator did not have the mental capacity to make a will.

Contentious probate: A beneficiary disputes the interpretation of a will and argues that they are entitled to a larger share of the estate than they have been given.

It is important to note that the two terms are often used interchangeably. For example, a lawyer might say that they are “dealing with a contentious probate matter” when they are actually challenging the validity of a will.

If you are thinking about contesting a will or pursuing a contentious probate claim, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.

The time limit for making a contentious probate claim in the UK is six months from the grant of probate. This is the legal document that gives the executor the authority to administer the estate.

If you do not make your claim within this six-month time limit, you may need to apply to the court for permission to make a late claim. The court will only grant permission if you have a good reason for not making your claim on time.

There are a number of factors that the court will consider when deciding whether to grant permission for a late claim, including:

  • Why did you not make your claim on time?
  • The strength of your case.
  • Whether the other beneficiaries will be prejudiced if your claim is allowed to proceed.
  • If the court grants you permission to make a late claim, you will need to file your claim within 28 days.

 

It is important to note that there are some exceptions to the six-month time limit. For example, if the executor has committed fraud or concealed assets from the beneficiaries, the beneficiaries may be able to make a claim after the six-month time limit has expired.

If you are thinking about making a contentious probate claim, it is important to seek legal advice as soon as possible. A lawyer can assess your case and advise you on the time limits that apply and whether you have a good case.

Here are some examples of when you might be able to make a late contentious probate claim:

  • You were not aware of the death of the deceased until after the six-month time limit had expired.
  • You were unable to make your claim on time because you were ill or incapacitated.
  • The executor has deliberately concealed information from you about the estate.
  • The executor has committed fraud in the administration of the estate.

 

The 12-year limit for making a contentious probate claim in the UK applies to claims for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975. This means that if you are making a claim for financial provision from an estate, you must do so within 12 years of the date of the deceased’s death.

The reason for the 12-year limit is to encourage people to make their claims as soon as possible after the deceased’s death. This is because it can become more difficult to investigate and prove a claim after a long period of time has elapsed.

If you are unsure whether you are able to make a late contentious probate claim, you should seek legal advice.

Most disputes in the UK are resolved out of court through mediation and negotiation. This is because it is generally faster, cheaper, and less stressful for all involved.

If you are considering disputing a will, it is important to contact a contentious probate specialist before you involve any other relatives or beneficiaries of the estate. A specialist lawyer can advise you on your legal options and help you to resolve the dispute quickly and efficiently.

Here are some of the benefits of resolving a will dispute out of court:

  • It is faster and cheaper than going to court.
  • It is less stressful for all involved.
  • It allows you to maintain relationships with other family members and beneficiaries.
  • You have more control over the outcome of the dispute.

 

There are a number of steps that you can take to try to resolve a contentious probate dispute without going to court, including

  • Negotiation: You can try to negotiate a settlement with the other parties to the dispute. This may involve making concessions on your part, but it can be a good way to avoid the time and expense of court proceedings.
  • Mediation: Mediation is a process where an independent mediator helps the parties to reach a mutually agreeable settlement. Mediation can be a good way to resolve a dispute without going to court, but it is important to note that it is not binding on the parties.
  • Arbitration: Arbitration is a more formal process than mediation, and it is binding on the parties. However, it can still be a good way to resolve a dispute without going to court.

 

If you are unable to resolve the dispute amicably, you will need to file a claim with the High Court. The court will then hold a hearing to decide the case.

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