Capacity to make or revoke a Will

The following Private Client practice note provides comprehensive and up to date legal information covering:

  • Capacity to make or revoke a Will
  • The common law test for capacity
  • Eccentricity
  • Delusions
  • The statutory test for capacity
  • Applicability of the statutory and common law tests
  • Reducing the risk of a challenge to a Will on the grounds of capacity
  • The solicitor's duty
  • The Golden Rule
  • Evidence
  • More...

Capacity to make or revoke a Will

In order to make a valid Will, the testator must satisfy a capacity test on two separate occasions:

  1. when they give instructions for the drafting of the Will or at the time it is written or typed out by the client themselves

  2. at the time of executing the Will

If there is no capacity at either time, the Will may be invalid. The problem can be that between the time of instructions and the execution of the Will capacity diminishes or disappears. The capacity required at the time of execution can be less than that required at the giving of instructions but in such circumstances the testator must still recall the instructions and that the Will that is being executed complies with those instructions.

A difficulty that the practitioner will come across with elderly clients is that the instructions may come from a third party. There is nothing inherently wrong with this but the greatest caution needs to be exercised and the principles referred to in Parker v Felgate cannot be applied without sufficient investigation. Where instructions come from a third party, it will be necessary for the solicitor to satisfy themselves that the person providing instructions has authority to do so on behalf of the client. If there is any hint of suspicion, the court will not hesitate in

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