Court gives useful guidance on how to prove lack of capacity to make a will
The Court has recently considered the approach that should be taken when proving lack of capacity to make a will in England and Wales.
Uncertainty has risen as to whether the test laid down by the Mental Capacity Act 2005 should be applied, or whether claimants should still prove lack of capacity to make a will by applying the common law test originally set out in the Victorian case of Banks v Goodfellow.
Since the Mental Capacity Act was introduced there has been a tension between the two different tests.
The judge concluded that the Banks v Goodfellow test remains good law, and has not been overridden by the Mental Capacity Act.
The Court had to specifically examine what evidence was required to establish that the maker of a will was suffering from a delusion which rendered their will invlaid.
To establish that a testator (the person who makes a will) had a delusion (a false belief which is both irrational and fixed) the judge confirmed that it is necessary to conduct a “holistic assessment of all the evidence”.
This approach would take into account:
a) the nature of the belief,
b) the circumstances in which the belief arose;
c) whether there was an evidential basis for it;
d) whether the belief was formed in the face of evidence to the contrary;
e) the period of time for which the belief was held by the testator; and
f) whether the belief was the subject of any challenge.
If you are looking for experienced contentious probate solicitors to offer you guidance on how to prove lack of capacity to make a will then contact our free legal helpline by calling us on freephone 0333 888 0404 or sending an email to [email protected]
