A brief look at wills and testamentary capacity

Couwenbergh v Valkova [2008] EWHC 2451 (Ch) is authority for the proposition that the law does not call for a perfectly balanced mind in order for a will to be valid.  A will is not invalid where the testator acted capriciously, eccentrically or with bad motives.  Where the will is rational on its face and is duly executed, a court will presume that the testator was mentally competent. Those wishing to show the testator’s unsoundness of mind then have the burden to adduce evidence in support.

However, once there is evidence before the court which credibly calls into question the testator’s capacity to make a will at the time the will was made, the burden then shifts to those who wish to show that the testator was in sound mind at the time of making the will to adduce evidence in support.

Similar cases include:

Scammell v Farmer [2008] EWHC (Ch) – despite the testator being diagnosed with the early onset of Alzheimer’s in September 2001, it was held that the testaor had testamentary capacity when she made a will in early 2003.

Hoff v Atherton [2005] WTLR 99 – it is possible to have testamentary capacity despite suffering from mild to moderate dementia

The Mental Capacity Act 2005

S.1(2) states that: “a person must be assumed to have capacity unless it is established that he lacks capacity”.

S.2(1) now provides a statutory definition of someone who lacks capacity as: “…..a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.

S.2(2) provides that: “It does not matter whether the impairment or disturbance is permanent or temporary”.

s.2(3) and (4) states that a lack of capacity cannot be established merely by reference to: “a person’s age or appearance, or a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity….….any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities”.

S.3(1) lays down the test of capacity as follows: “a person is unable to make a decision for himself if he is unable

(a) to understand the information relevant to the decision;

(b) to retain the information;

(c) to use or weigh that information as part of the process of making the decision; or

(d) to communicate his decision (whether by talking, using sign language or any other means)”.

Each person must be helped to make and communicate their decisions.