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Challenging a Will due to Mental Capacity

I do not believe my father knew what he was doing when he made his Will.  Is there anything I can do?

For a Will to be valid the maker of the Will must have ‘testamentary capacity’ (i.e. be of sound mind) at the time they make their Will.

If it can be proved that the person making the Will lacked testamentary capacity at the date they executed the Will, the Court may find the Will invalid in which case the provisions of an earlier Will would take effect, or if there is no earlier Will, the intestacy rules will apply.

The basic test for establishing if someone has ‘testamentary capacity’ is whether they:

  1. understand the nature of making a Will and its effect; and
  2. understand the extent and value of their estate; and
  3. comprehend and appreciate the claims to which they ought to give effect (e.g. do they understand the consequences of including or excluding someone   from their Will); and
  4. are affected by any ‘disorder of the mind’ that influences their Will in disposing of their property

The presence of mental illness or diseases such as Alzheimer’s or similar degenerative conditions does not automatically mean that a person lacks testamentary capacity or that their Will can be automatically successfully challenged. Each case must be considered on its own facts and medical evidence is usually required.

If you would like advice on challenging a Will please contact us.