Old age and capacity: how to protect your will from challenge

Photo credit: Esther Ann

Making a will is an important piece of life admin.  The only way to make sure your wishes are carried out when you die is to make a will. With a will you can:

  • Ensure you look after your spouse and children;
  • Leave a gift to people or charities closest to you,
  • Ensure you split your estate fairly bearing in mind gifts you’ve made during your lifetime, or
  • Disinherit someone that might otherwise get a share of your estate.

How can a a will be challenged?

Someone who feels they’ve been left out of your will unfairly can challenge your will. They can do this if a gift (e.g. to a close friend or charity) is a surprise or somehow offends the other beneficiaries.  

When this happens, a jilted beneficiary can apply to the courts to ask for a share of your estate. Even if you didn’t want that to happen.  One of the most common challenges is asserting you didn’t have “Mental Capacity”. i.e. you didn’t understand what you were doing when you wrote the will. 

Mental Capacity is a fairly nebulous phrase. There is no clear definition at law.  It does not follow the definition set out in the Mental Capacity Act of 2005 or any of mental health legislation.

For mental capacity courts look at other things over and above diagnosis of degenerative disease or mental health issues.  It is perfectly possible for a will to be valid where someone has a diagnosis of e.g. Alzheimer’s Disease.  Likewise: someone with a clean bill of health could have their will successfully challenged by a jilted family member. 

What do the courts look at?

The courts will weigh the facts available to them and come to a decision.  The good news is courts give a lot of weight to the principle that someone has the right to determine their own affairs as they see fit .  Courts recognise a world where the elderly can be side-lined and be left without power or influence. Therefore the exercise of discretion when making a will can be one of the few areas where they can exert influence. 

The Courts want to be satisfied of of the following (from the case “Banks v Goodfellow”):

  1. That the person making the will understood they were making a will;
  2. They know (roughly) what assets form their estate (property, investments, cash etc);
  3. They know who might expect to inherit (even if they don’t all make it into the will);
  4. There is no “…disorder of the mind or insane delusions”.

The final point in particular can be open to interpretation.  It does not follow statutory guidance – rather – it should reflect the facts on a case-by-case basis.  If someone suffers from a mentally degenerative disease, you might think that they can’t make a will.  However, it is often the case that someone can have “good days” and “bad days”.  A will made on a good day can be perfectly legal.  We list the steps you can take to protect the will maker’s wishes below.

The second set of rules that the courts follow (from the case Parker v Felgate) are:

  1. The person had testamentary capacity when they gave instructions; and
  2. They remember giving instructions and understand that the will has been drafted in accordance with their instructions.

This is similar but subtly different to Banks v Goodfellow. 

What can I do/ The Golden Rule.

The above two cases give indications of what you can do to protect the wishes especially when making a with a solicitor.  Make sure that your advisor takes detailed notes of your wishes. You can keep a diary setting out all of the necessary information too. This can act as evidence that you knew what you were doing when you made your will.  

However, above all, the best thing you can do is follow the “Golden Rule” as set out in Kenward v Adams.  This says that:

“…in the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding…

To recap:

In order to best protect your wishes in a will, do the following:

(a)    Make a will in front of a qualified solicitor. If this is not possible – make sure you keep a clear note. Show that you know the tests in Banks v Goodfellow, i.e. you:

  1. understand you are making a will;
  2. know (roughly) what assets form your estate (property, investments, cash etc);
  3. know who might expect to inherit (even if they don’t all make it into your will);
  4. have no “…disorder of the mind or insane delusions” (see the Golden Rule for this).

(b)    Make it clear that you have given the instructions yourself and you know the legal effect of a will; and

(c)     Make sure a doctor or other qualified medical practitioner is a witness to your will. Make sure they take a contemporaneous note saying that you had testamentary capacity. They should keep that with their professional files (and let you have a copy).

Be aware, however, that no approach is bulletproof.  A court can hold a will to be valid even if none of the above steps were taken.  Likewise, you could have done everything perfectly, and the courts could hold your will invalid.  The courts jealously guard their powers of discretion.  However, by doing everything right as set out above, you reduce the chance of a successful challenge.  You can only ever control the controllable – and give your wishes the very best chance.