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Did they have all of their wits when they made their will? (Challenging a will on the basis of incapacity)

A deceased person’s will can be challenged for a number of different reasons. In this article, we look briefly at challenges to a will based on the grounds that the will maker did not have testamentary capacity at the time they made their will.

In an increasingly litigious society, we are seeing more and more cases before the Courts in relation to deceased estates. These are most often under the Family Protection Act 1955 (FPA) where a party claims that they have not been adequately provided for in a will (see this article for some more detail regarding claims by children under the FPA) however, it is also possible to challenge a will if you have grounds to suspect that the will-maker did not have testamentary capacity at the time they made their will.

The law on testamentary capacity is well-settled. In summary, for a will-maker to have the required capacity, they must have an understanding of the following three things:

  1. that he or she is making a will and the effect of doing so;
  2. the extent of property being disposed of; and
  3. the moral claims to which he or she should give effect to when making the testamentary dispositions.

Capacity issues will often arise in will-makers of advanced age, but old age and/or ill physical health is not determinative of capacity. If there is a challenge to capacity, the onus of satisfying the Court that the will-maker did have capacity rests with those seeking probate of the will (usually the executors) and interested parties can submit evidence in support or opposition of such an application.

There is often medical evidence available and legal practitioners with cause for concern will ordinarily require a will-maker to obtain a capacity assessment before witnessing the will. However (and particularly in the absence of medical evidence) the Court will take into account evidence from people who knew the will-maker well, and had the opportunity to observe the person at relevant times.

In practical terms, what this means for you is that if you have had a loved one pass away and you have concerns that at or around the date of the making of their will, they did not have all of their wits about them, then you may be able to have their will revoked.


This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.

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