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Mental Capacity and Writing a Will

At the sad time of a friend or family member’s death, a Will can help to alleviate the stress of difficult decisions in dividing finances and assets. But even in the event a Will has been written, there can sometimes be cause to challenge the intentions a loved one leaves behind.

One of the grounds for challenging a Will is in the Will-writer’s mental capacity to understand how they are acting. In UK law, when writing a Will the person making the Will, the ‘testator’, must be of “sound mind, memory and understanding.”

A person’s testamentary capacity – or in other words, their level of understanding of the content of their Will – must be considered.

The law states that a Will is invalid if the testator does not have testamentary capacity. In order to be deemed to have capacity, the ruling case states that the testator must be capable of understanding:

  1. The nature of his act and what a Will does;
  2. The extent of the property of which he is disposing; and
  3. (and appreciating) the claims to which he ought to give effect (i.e. must be able to remember that he/she has a daughter)

In relation to the third object, the law says that the testator’s mind should not be “poisoned” by a mental disorder. This means that no mental disorder should poison the testator’s affection, pervert his/her sense of right or prevent the exercise of his/her natural faculties.

An example of this is the 2014 headlining High Court dispute over a deceased woman’s Will between her partner and two daughters. Elizabeth Walker suffered a brain tumour and died aged 53 in 2010. Her £1.2 million estate was split between her daughters and lover.

Mrs Walker’s Will was written a month before her passing, when it was alleged her mental capacity had deteriorated. Her daughters claimed their mother was “delusional and irrational” due to her condition, but a letter sent by Mrs Walker outlining her rationale behind the writing of her Will suggested “detailed, clear thinking” according to a consultant in Court.

The sisters ultimately lost the battle to overturn their mother’s Will, with the judge dismissing their claims on the grounds that he did not believe her “testamentary capacity” was impaired at the time of writing her Will, stating, “The evidence shows that she retained her love and affection for her daughters throughout. Whilst there is some evidence that she continued to suffer occasionally from delusions, or at least irrational thoughts, they did not relate to her daughters and had no influence on her Will.

The key question in this case was whether Mrs Walker’s brain tumour had in fact caused a mental disorder and, if so, whether this disorder caused her to write the Will in the way that she did.

An Extraordinary Case

A more extreme historic case, for example is ‘Smee v Smee’ from the 19th century. The testator suffered from the insane delusion that he was the son of George IV, who, when Prince regent, had built Brighton Pavilion. Under two successive Wills the testator left his estate to his widow for life and then to the Corporation of Brighton to found a free public library for the people of Brighton. The jury held that this insane delusion affected this mind when drew up the Will and, as such, the court pronounced against both Wills.

Call our Wills and Probate Solicitors on freephone 0800 916 9055 or contact us online.

Slater and Gordon Lawyers have more than 1,450 staff and 18 offices in London, Manchester, Liverpool, Sheffield, Birmingham, Bristol, Cardiff, Edinburgh, Merseyside, Milton Keynes, Halifax, Newcastle, Wakefield, Cambridge, Derby and meeting rooms in Bramhall, Cheshire and in Hull, Yorkshire.


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