Testamentary Capacity

Lack of testamentary capacity when making a Will

Another way of demonstrating that a Will is invalid is by proving a lack of testamentary capacity in the deceased at the time the Will was made. The basic premise of this is that they were not "of sound mind" when the Will was written, leading them to make decisions which would presumably have been different if they were in a healthier mental state. They may not have understood what the Will was or its importance, or could have made choices motivated by confusion or misapprehensions.

Lack of testamentary capacity may be due to mental or physical illness. Testamentary capacity could be deemed insufficient because of mental illness, most commonly Alzheimer's disease or other types of dementia. It can also be caused when the deceased was heavily drugged with painkillers when terminally ill. It is extremely difficult to succeed in this claim as the main witness in the piece, the deceased, cannot be in court.

A typical example is the case of eighty nine year old Golda Bechal, who left the majority of her £10 million estate to the owners of her favourite Chinese restaurant. After an expensive court action, the Will was upheld after being challenged by her nephews and nieces on the grounds that she didn’t understand the implications of the Will due to suffering a mild form of dementia, thus impairing her testamentary capacity.

There are some people who have managed to successfully overturn a Will, however. Christine Gill successfully challenged her mother’s Will which had left £2m to the RSPCA (2010). Ms Gill suggested that her mother had suffered from anxiety and agoraphobia, and her father was "domineering and bombastic… utilizing her anxiety and fear of his explosive character… to coerce her into making the Will which she did". While a lack of testamentary capacity was relevant in this case, it also contains elements of undue influence.

Even with this success though, the RSPCA are set to appeal against the decision which will result in months of continued legal wrangling, and most probably cost thousands and thousands of pounds which will either come out of the estate, or even the wallets of Ms Gill or the RSPCA.

Nonetheless, this pales in comparison to the famous case of Kostic v Chaplin in 2007 where the challengers were successful, but ended up paying £900,000 in legal costs. In this case a Mr. Kostic left £8.2 million to the Conservative Party as he thought they were not part of an international conspiracy of "dark forces" against him, which led to his relatives challenging on the basis of his testamentary capacity, as he suffered from a delusional disorder.

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