Daughters Win High Court Will Challenge: Why Testamentary Capacity Matters

Testamentary capacity means the mental ability to make a valid Will. A person does not need to be in perfect health, and a diagnosis or period of illness does not automatically mean they cannot make a Will. The key question is whether they understood what they were doing when the Will was made.

In broad terms, a person making a Will should understand:

• that they are making a Will and what a Will does
• the nature and extent of their estate
• who might reasonably expect to benefit from their estate
• the effect of the decisions they are making
• They must also be able to make those decisions free from a disorder of the mind that affects their judgment in relation to the Will.

This can be a sensitive issue for families: concerns about capacity often arise where someone is elderly, seriously ill, experiencing memory problems, affected by mental health difficulties, or making a Will that appears very different from their previous wishes.

The Gwilliam case shows how difficult Will disputes can become when capacity is questioned after someone has died. The person who made the Will is no longer available to explain their decisions, so the Court may need to consider medical records, witness testimony, professional notes, family history, and expert evidence. Where there are clear capacity concerns at the time a Will is made, those involved in preparing the Will should consider whether additional safeguards are needed.

The Law Society has issued guidance for solicitors on preparing a Will for an older or seriously ill client, known in the Courts as the “golden rule”. It encourages involving a medical practitioner in cases where capacity might later be called into question, with the aim of reducing the risk of disputes after death.

Good file notes, careful instructions, private meetings with the person making the Will, and medical evidence, where appropriate, can all help show that the person understood their decisions and was not improperly influenced.

If a Will is successfully challenged and found to be invalid, the estate may pass under an earlier valid Will. If there is no earlier valid Will, the estate will usually pass under intestacy rules, as in Mr Gwillam’s case.

This can have a major impact on families. The outcome may be very different from the terms of the disputed Will, and disputes can be costly, stressful and lengthy.

A Will may be challenged for several reasons, including:

• lack of testamentary capacity
• lack of knowledge and approval
• undue influence
• deliberate false claims made to turn the person making the Will against someone who might otherwise have inherited
• failure to comply with the legal formalities for making a valid Will

Each of these grounds is different, and the evidence needed will depend on the circumstances. A disappointed family member cannot challenge a Will simply because they disagree with it; there must be a proper legal basis for doing so.

Mr Gwillam’s case also highlights the importance of planning ahead while someone has capacity. A properly prepared Will gives clear instructions on who should inherit and who should administer the estate. It can reduce uncertainty for family members and make it easier for loved ones to understand the person’s wishes.

A Lasting Power of Attorney, or LPA, can also be important and can be made by anyone over 18 with mental capacity. An LPA allows them to appoint trusted people to make decisions on their behalf if they lose capacity in the future. There are two types: one for property and financial affairs, and one for health and welfare.

An LPA does not replace a Will, but it can help ensure that important decisions are made by trusted people during a person’s lifetime if they later become unable to make those decisions themselves.

Where there are already concerns about capacity, family tension or a proposed change to an existing Will, early advice can be especially important. It may help reduce the risk of a future dispute or ensure that appropriate evidence is gathered at the right time.

If you are concerned that a loved one may not have had capacity when making a Will, or that a Will does not reflect their true wishes, it is important to get advice as soon as possible.

It may help to gather:

• a copy of the Will and any earlier Wills
• details of when and where the Will was made
• any letters, emails or notes about the person’s wishes
• relevant medical information
• evidence of family relationships and previous intentions
• details of who was involved in arranging or preparing the Will

Will disputes are often evidence-led, so the sooner advice is sought, the easier it may be to identify the relevant documents, preserve evidence and understand whether there may be grounds to challenge or defend a Will.

Strict time limits can apply to some inheritance and estate claims, so early advice is important.