Beneficiaries under a Will do not have to prove that the maker of the Will had the requisite mental capacity in order to obtain probate of that Will. If the Will is rational on its face then the law presumes that the testator was of sound mind on the date he or she signed it.

From time to time however the validity of some Wills is challenged on the grounds that the deceased lacked testamentary capacity at the time. In these cases the Will might contain some strange provision in it which needs to be explained, or there is other extraneous evidence produced by other interested parties which raises lack of capacity as a tenable issue.

In these cases (perhaps not as rare as one might think) the onus falls upon the beneficiaries of the Will to establish that the testator was lucid when he or she signed. It follows that whether this onus is discharged Will depend upon the quality of the evidence that comes before the court.

The Court will be interested to know whether or not the deceased suffered from any debilitating disease of the mind. Dementia is one disease of the mind which can cause its victims to harbour paranoid delusions about persons who might otherwise expect to benefit under the Will. That perhaps is the more severe type of mental disease that gives rise to capacity issues. The victim of dementia erroneously believes that he or she is being persecuted in some way and then seeks his or her revenge by excluding that person (usually a close family member or friend) from the Will.

At the other end of the mental capacity scale are frail elderly people, who are easily confused and easily influenced, and can sometimes be led astray by avaricious relations or friends resulting in Wills being changed when they otherwise might not have been.

If there is evidence of a disease of the mind or of confusion the next enquiry will be to determine what the will maker’s understanding at the requisite time was of three different things. These are:

• did the will maker understand that the document he or she signed was a Will and what that meant
• did he or she comprehend the extent and nature of the property being disposed of in the Will
• did he or she recognise the people who would ordinarily benefit under the Will if the testator was of sound mind and understanding

If the evidence raised is that the deceased lacked capacity before the Will was signed then those people who support the Will have a particularly heavy burden of then trying to establish that the testator recovered or made the Will during a lucid interval. Generally speaking this is how the Courts approach cases of mental capacity or incapacity. At the end of the day much will depend upon the opinions of the doctors at the date when the Will was signed. In addition all the surrounding circumstances will be taken into account including the opinion of the lawyer who prepared the Will (presumably on instructions) and who witnessed the signing of the Will.

For specialist assistance and advice concerning this topic, contact Cathy Fisher at Fortune Manning.