Challenging a will on mental capacity grounds

Yes, a will can be challenged on the ground that the person making it (the testator) did not have the mental capacity required at the time the will was executed. This is one of the most common grounds for contesting a will.

The legal test:

The test for testamentary capacity in England and Wales comes from the case of Banks v Goodfellow (1870). Under this test, the testator must have been able to understand four things at the time the will was made:

1. The nature of making a will and its effects.
2. The extent of the property they were disposing of.
3. The claims of those who might reasonably expect to benefit, even if the testator chose not to provide for them.
4. That they were not affected by any disorder of the mind that influenced the dispositions made.

This remains the core test, although the courts have refined its application over the years. The Mental Capacity Act 2005 and its principles may be relevant in some circumstances, but Banks v Goodfellow continues to be treated as the primary test for testamentary capacity.

Important points to understand:

The golden rule is a well-known practice direction from the case of Kenward v Adams (1975). It says that where a testator is elderly or seriously ill, the solicitor preparing the will should arrange for a medical practitioner to assess the testator's capacity at the time of execution, and ideally for that practitioner to witness the will or at least to provide a contemporaneous written assessment. If this was not done, it does not automatically invalidate the will, but it can make a challenge much easier.

Capacity is assessed at the time the will was executed, not before or after. A person suffering from a condition such as dementia may still have capacity on a good day, and a will made during a lucid interval can be valid. Equally, a person may generally appear well but lack capacity at the specific moment the will was signed.

There is a presumption that a person who has executed a will that appears rational on its face had the requisite capacity. The burden of proof falls on whoever is challenging the will to raise a real doubt about capacity. However, if the challenger produces sufficient evidence to raise that doubt, the burden shifts to those seeking to uphold the will to prove that the testator did in fact have capacity.

Evidence that may be relevant:

Medical records around the time the will was made are often the most important evidence. GP notes, hospital records, assessments under the Mental Capacity Act, and any formal cognitive assessments can all be significant. Witness evidence from those who saw the testator around the time the will was made can also be helpful, including from the solicitor who took instructions and the witnesses who were present at execution.

Expert medical evidence is almost always needed in a contested case, typically from a consultant psychiatrist or geriatrician who can review the records and give an opinion on whether the testator met the Banks v Goodfellow test at the relevant time.

Practical steps if you are considering a challenge:

1. Obtain a copy of the will and any earlier wills if possible.
2. Find out whether the golden rule was followed and whether there is a contemporaneous medical assessment.
3. Gather medical records covering the period around the date the will was made.
4. Collect witness accounts from people who saw the testator around that time.
5. Consider instructing a specialist solicitor in contentious probate work at an early stage, because these claims are factually complex, can be expensive, and carry significant costs risks.
6. If probate has not yet been granted, a caveat can be entered at the Probate Registry to prevent a grant being issued while the matter is investigated. A caveat lasts for six months and can be renewed.
7. If possible, explore whether the dispute can be resolved through negotiation or mediation before issuing proceedings, as contentious probate litigation can be lengthy and costly.

Costs and risks:

These cases often turn on medical evidence and can be difficult to predict. Costs can be substantial, and the general rule that the losing party pays the winning party's costs applies in most cases. The court does have discretion on costs and in some probate disputes may order costs to come out of the estate, but this is not guaranteed and should not be relied upon.

Time limits:

There is no fixed limitation period for challenging a will in the same way as other civil claims, but delay can be prejudicial. If you are also considering a claim under the Inheritance (Provision for Family and Dependants) Act 1975, that has a strict six-month time limit from the date of the grant of probate, so timing matters.

If you can share more about the specific circumstances, I can give you a more tailored view of the strength of a potential challenge and the best way to approach it.