Having mental capacity is one of the conditions that you must meet for your Will to be valid. This means you must be able to understand and retain information for long enough to weigh it up and make a decision. You must also be able to communicate the decision you have made. 
Unfortunately, if there is a question about whether you had mental capacity when you made your Will your wishes could be challenged in court. 
This can be time consuming and expensive, and it can also be very stressful for your family members and friends. It can even lead to family rifts. 

Family battles 

In one recent case a son appealed to the High Court to have his mother’s two Wills reinstated after the courts had previously found that they were invalid. 
Permission to appeal was granted in November 2020 after a judgment in May 2020 ruled both of his mother’s Wills were invalid because of mental capacity concerns after her daughter’s death in 2009. 
While the son firmly believed that his mother’s wishes should be respected, expert witnesses disagreed about his mother’s mental capacity, even though she went to great lengths to make sure her Wills were valid. 

Who assesses mental capacity? 

Although the Mental Capacity Act has been in force for thirteen years, court decisions about mental capacity to make a Will are based on case law from 1870. Many people argue that decisions about Will disputes should follow the modern legislation about mental capacity. 

The current rules 

The Victorian court case established the test to prove that someone has the capacity to make a Will, which still applies today. 
Four things that are required at the same time. A person must: 
understand that their Will deals with the distribution of their estate when they die 
understand what they are leaving, although they don’t need to recall every asset and liability or their exact values 
be aware of anyone who might expect to be provided for, regardless of whether that person is included as a beneficiary 
not be suffering from a disorder of the mind that would ‘poison his affections, pervert his sense of right or prevent the exercise of his natural faculties’. In other words, they must not be suffering from delusions. 

Proof of mental capacity 

If someone wants to prove a Will is valid they must show that the person who made it understood what they were doing. Normally, if the Will is executed correctly and appears rational, the courts will assume that they had capacity. 
However, if someone challenges whether they did, in fact, have capacity then it must be proved that they did. This might include written or verbal evidence about how the Will was made. Expert evidence might also be given. 
Sometimes a professional Will writer might advise that a medical professional should witness the Will or that a medical assessment is undertaken. This would be strong evidence if the Will was ever disputed. 
If you would like some advice about mental capacity for yourself or a loved one, please get in touch. 
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