Contesting a Will Due to Lack of Testamentary Capacity

For someone to make a valid Will, they must have sufficient testamentary capacity i.e. the ability to fully understand the contents and effects of their Will. If someone lacked this, it may be possible to contest their Will. This is a matter our contentious probate solicitors can support you with.

At Tinsdills Solicitors, we have years of experience handling a variety of legal disputes. We are well placed to support you with contested Wills, including those relating to a lack of testamentary capacity. We can guide you through the entire process of bringing or defending such a claim, supporting you to secure a positive outcome.

We have substantial expertise in negotiation which we can use to help reach an agreement with as little disruption as possible. We always use our expertise to secure the best settlement possible for your situation. If we do need to look to court proceedings, our team will be with you every step of the way.

Our team also have a wide range of expertise in other matters related to contested Wills, Trusts and Probate. Find out more about these services here.

To discuss contesting a Will due to lack of testamentary capacity with one of our contentious probate solicitors in Hanley, Leek, Newcastle-Under-Lyme or Sandbach, please call 01782 652300 or use the enquiry form on the right hand side of the page.

Our Expertise with Contesting Wills Due to Lack of Testamentary Capacity

Bringing Claims of Lack of Testamentary Capacity

If you have been left out of a Will, have not been provided adequate financial provision or you believe that another beneficiary has been included in a Will against a testator’s wishes, you may be able to bring forward a claim of lack of testamentary capacity, if there is evidence of this.

If someone indeed lacked testamentary capacity at the time they signed their Will, it will be considered invalid. The estate would then be administered according to the terms of their most recent Will or the rules of intestacy where there is no valid Will in place.

Our contentious probate solicitors can work alongside you to help put forward a claim for lack of testamentary capacity, collating all of the necessary evidence to demonstrate why the Will is invalid.

Defending Claims of Lack of Testamentary Capacity

If you are a beneficiary of a Will and someone intends to lodge a claim for lack of testamentary capacity, it may be necessary to defend the claim to protect your inheritance rights.

If the proper procedures were followed during the creation of the Will, the issue of lack of testamentary capacity should have already been taken into consideration, meaning that it may not be a valid reason to refuse the Will.

Where you are defending against a claim of lack of testamentary capacity, our contentious probate team can bring together and evaluate all of the relevant information to support the application of the Will. We will take all necessary steps to demonstrate that the testator had sufficient capacity when creating or amending their Will.

Meet our Dedicated Contested Will Team

Legal & Commercial Director

Paul Woolliscroft

Paul is a litigation Solicitor, Legal & Commercial Director and Head of the Litigation…

Senior Associate

Jason Washington

Jason is a Senior Associate and advises both businesses and individuals in resolving disputes….

Legal Executive (FCILEx)

Shannan Sutton

Shannan is a Chartered Legal Executive who specialises in civil matters for the department,…

Get in Touch With our Contested Will Solicitors Today

Do you want to discuss a contested Will case? We have expertise in this area and more.

With a dedicated team on hand to take you through every step of the process, you can rest assured that we will provide you with the best chance of getting the outcome you deserve.

To arrange an appointment with one of our contentious probate solicitors in
Hanley,
Leek,
Newcastle-Under-Lyme, or Sandbach,
please call 01782 652300 or use the enquiry form on the right hand side of the page.

Testamentary Capacity FAQs

What is Testamentary Capacity?

An essential requirement for a Will to be valid is that the testator must have testamentary capacity. Testamentary capacity means that the testator must have the sufficient mental capacity to make a Will.

A testator must:

Understand the nature of the Will and the impact it will have.
Understand the contents of the Will and what will be passed on.
Understand the moral obligations they need to consider when making a Will.
Have no ‘disorder of the mind’ that perverts their sense of what is right.

Someone’s testamentary capacity is likely to be affected by conditions such as memory loss, Alzheimer’s disease, dementia, mental illness or brain injury.

Who Decides Testamentary Capacity?

Confirmation of testamentary capacity may be sought from a medical professional at the time of making the Will, which is likely to be used as evidence of the validity of the Will.

However, a medical professional can still be asked to provide a retrospective opinion of the testamentary capacity of the deceased at the time the Will was made, which may demonstrate that the original assessment was not accurate.

What Happens if Someone Lacks Testamentary Capacity?

If it can be shown that someone lacks testamentary capacity while they are attempting to make or amend a Will, it will not be considered valid in the first instance and will not be used following the person’s death.

If it can be shown that someone lacked testamentary capacity when they made a Will, a previously valid Will is used, or the Rules of Intestacy are followed if there is no Will.

How Does Lack of Testamentary Capacity Differ from Lack of Knowledge or Approval?

Lack of knowledge or approval is often used in tandem with lack of testamentary capacity. Lack of knowledge or approval is used where it can be shown that someone did not understand or approve of the contents of their Will.

For example, the person may have had sufficient testamentary capacity, but they simply did not comprehend what the implications of their Will were or understand what was in the Will before they signed it.