In order to make a will, or to effect any changes to it, a testator (the person making the will) must have had testamentary capacity.  This means they must have had the mental capacity to understand the nature and consequences of creating a will at the time they executed it.

If you believe a testator executed a will at a time when they did not have testamentary capacity, it may be possible to challenge the will.  If you do not challenge it, then the estate will be administered in accordance with its terms.

This article considers the steps we can take to establish that a will is invalid on the grounds of a lack of testamentary capacity.

Gather Evidence of Lack of Capacity:

We would need to collect any available evidence that supports the claim of the testator lacking capacity at the time of creating the will. This may include medical records, assessments, witness statements, or any relevant documentation.

It may also be advisable to make a Larke v Nugus request of the will writer or solicitor who prepared the will.  This requests that the person who prepared the will answers a series of questions about the circumstances in which that will came into existence and usually accompanies a request for the entire will file.  This is an invaluable tool to consider whether the testator did have full knowledge and capacity at the time.

Medical Records and Expert Opinion:

It may be necessary to obtain the testator’s medical records or assessments conducted around the time the will was created. Consulting with medical experts, such as psychiatrists or geriatric specialists, can help establish whether the testator had the mental capacity to make a will.

Witness Testimonies:

In capacity claims, it is important to seek out witnesses who were present at the time the will was executed. They may be able to provide testimony regarding the testator’s mental state and capacity during the process.

Documentation of the Testator’s State of Mind:

Any documentation, such as letters, diaries, or other records, that sheds light on the testator’s mental state around the time of creating the will can be valuable.

Advice on Capacity and Inheritance Disputes

It is crucial to take advice as early as possible following the death of a loved one if you believe they may not have had legal capacity when their will was signed.  There are steps we can take to prevent a Grant of Probate from being taken out which would ensure the estate is not distributed or the will admitted to probate.

Claims such as these can be factually complex and emotionally difficult.  Here at Thompson Smith and Puxon we have our specialist and empathetic team who are able to advice you on the best way forward.

To talk to an expert on disputes involving wills, estates and inheritance, please call us on 01206 574431 or email