In the UK, testamentary capacity is a crucial legal requirement for creating a valid will. Testamentary capacity refers to the mental capacity of an individual to understand the nature and effect of making a will, as well as the extent of the property they are disposing of and the claims of potential beneficiaries.

Assessing Testamentary Capacity

For a will to be considered valid in the UK, the testator/testatrix (the person making the will) must generally meet the following criteria at the time of making the will:

  • Understanding the Nature of the Act: The testator must understand that they are creating a will, a legal document that dictates how their assets will be distributed after their death.
  • Understanding the Extent of the Estate: The testator should have a clear understanding of the value and nature of their assets, such as property, investments, and personal belongings.
  • Understanding the Claim of Beneficiaries: The testator should be aware of the people who may have a claim on their estate, such as family members and dependents.
  • Absence of Disorders or Influences: The testator should be free from any mental disorders or illnesses that might affect their decision-making capacity. They should also be making the will of their own free will, without being unduly influenced by others.

If a person lacks testamentary capacity when making a will, the will may be challenged and deemed invalid. It’s crucial to ensure that the testator is of sound mind at the time of creating the will.

If there is any doubt as to establish testamentary capacity the following should be considered:

  • Consultation with a Doctor: In cases where there may be doubts about mental capacity, it’s advisable for the testator to be assessed by a medical professional, such as a doctor or psychiatrist. The medical professional can provide an opinion on the individual’s mental state.
  • Record of the Circumstances: It can be helpful to keep detailed records of the circumstances surrounding the creation of the will, including any discussions with the testator, to demonstrate that they were of sound mind.
  • Ensuring testamentary capacity is not only a legal requirement but also helps in preventing challenges to the validity of the will. It’s advisable to seek legal advice when creating a will to ensure that all legal requirements are met and to minimise the risk of disputes in the future.

Questions about Testamentary Capacity?

Ensuring testamentary capacity is not only a legal requirement, but it also helps in preventing challenges to the validity of the will. It’s advisable to seek legal advice when creating a will to ensure that all legal requirements are met and to minimise the risk of disputes in the future. The experienced wills, trusts and probate team at Barrett and Co have all the answers to your questions about testamentary capacity. Contact us today to get the answers you need.