The will maker wasn’t of sound mind when they made their will.
To make a will, a person must be of sound mind. In law this is called having the ‘mental capacity’ to make a will.
Mental capacity is a complex subject, but essentially, it refers to a person’s ability to make rational and well thought-through decisions. However, just because someone makes an unexpected decision does not mean they lack mental capacity. To complicate matters further, a person can have the mental capacity for one type of decision (e.g. to manage their day to day affairs) but not for another type of decision (e.g. to make a will), and people can lose and regain mental capacity at different points in their lives. It is important to obtain the opinion of a specialist solicitor where someone’s mental capacity is doubted and a challenge to a will is being considered.
The law sets out a test to decide whether a person has the required mental capacity. It says that the person making the will must understand:
- That their will ensures all their possessions, money, and other assets (called their estate) are given out to those the people named in the will on their death.
- What possessions, money, and other assets they own or are entitled to and will therefore be distributed on their death.
- The moral claims to which they might take into consideration when making their will. The natural expectations and hopes of an inheritance by their close family and friends.
You should seek the advice of a specialist solicitor to see whether the will maker would have passed the above test.
So how do I show that the will maker did not have mental capacity?
Where the will appears to be rational (for example by leaving the estate or parts of the estate to the people who might be expected to inherit) then the courts assume that person making the will had the mental capacity required to make a valid will. To overcome this assumption evidence to the contrary will need to be given to the court to suggest there was no mental capacity, and the court, and that evidence must be strong enough to convince the court that the will should have no effect.
When deciding whether the will maker had the required mental capacity the court will look at their mental state on the day that they signed their will. Just because somebody did not have the required mental capacity in the period leading up to them signing their will does not prove the will is invalid, though it will of course provide very important evidence. If the will maker was of sound mind at the time they signed their will then the will, regardless of their mental state before that, then the will is valid.
Therefore, often the strongest evidence about mental capacity comes from the persons who witnessed the will maker signing the will.