With increased life expectancy comes increased mental illness as people’s bodies outlive their minds. Dementia and other mental illnesses including depression, anxiety, psychosis, confusion and personality disorders may all impact a testator’s ability to make a Will. In addition, drug use, alcoholism and recent bereavement can have a significant impact on capacity. Analysis of the test for testamentary capacity For the purpose of assessing a deceased individual's testamentary capacity, recent case law maintains that the test under Banks v Goodfellow is still the appropriate test. That test provides that the testator must: • understand the nature of the act of making a Will and its effects • understand the extent of their estate of which they are disposing by Will • understand and appreciate any claims against their estate, and • not suffer from any ‘disorder of the mind’ such as to impair or influence the above factors In Leonard v Leonard the High Court set

The term ‘mutual Wills’ is used to describe joint or separate Wills made as a result of an agreement between the parties to create irrevocable interests in favour of ascertainable beneficiaries. The court recognises that all Wills can be revoked by the testator during their lifetime but in the case of mutual Wills, equity will protect and enforce the interests created by the agreement for the benefit of the beneficiaries. Mutual Wills therefore allow individuals to crystalise their wishes so that their estate passes on the second death in accordance with those wishes. Establishing the existence of a mutual Will The law as to what constitutes a mutual Will is helpfully summarised by John Gaunt QC in Charles v Fraser: • mutual Wills are Wills made by two or more persons, usually in substantially the same terms and conferring reciprocal benefits, following an agreement between them to make such Wills and not revoke them without the consent of the other In Dufour v Periera, the court confirmed that the mutual Will contract can be revoked

In order to mount a successful challenge to the validity of a Will, a claimant will need to provide evidence in support of their claim, and the defendants who seek to uphold the Will also require evidence for their defence. The physical and mental health of the testator is likely to be highly relevant to all types of challenge. Most obviously, a claimant who alleges that the testator lacked mental capacity will usually wish to anchor their claim in medical evidence supported by analysis provided by an expert in geriatric psychology confirming that at the relevant date the testator did not meet the relevant test(s) for testamentary capacity. However, medical evidence is also relevant to other types of challenge. A claim for lack of knowledge and approval may be more likely to succeed if it can be shown that the testator’s mental faculties were low at the relevant time. It is harder for someone suffering, say, the early stages of dementia to understand complex Will provisions than it is for an elderly person

Types of revocation There are two areas in which an action involving revocation may occur: • where there is a challenge, on an application to prove a Will in solemn form, that the Will was revoked • on a claim for the revocation of a grant In respect of a challenge that a Will was revoked, there may be consequential actions: • a claim for breach of contract not to revoke a Will • a claim on the basis of proprietary estoppel • a claim to enforce an agreement to make mutual Wills In order to deal with a challenge that a Will was revoked, it is necessary to examine the rules relating to Will revocation. Will revocation A Will can only be revoked: • by operation of law • by an instrument in writing, or • by physical destruction Operation of law Essentially, this occurs in the context of marriage and its dissolution. Marriage For Wills made on or after 1 January 1983 the relevant provisions state that: • the testator's marriage (including voidable but not void)

Secret trusts The enforcement of secret trusts has its roots in equitable doctrines. Here, though, it is not the Will itself that may be the subject of a claim but a particular disposition. Definition There are two forms of secret trust, namely: • the fully secret trust, where the named beneficiary has an apparent absolute gift but that in fact, they have agreed with the testator to hold on certain trusts • the half or semi-secret trust, where the beneficiary is a mere trustee and the terms of the trust are not disclosed or fully disclosed in the Will To these should be added the distinguishable scenario that probably fits between the two where the testator requests the beneficiary to deal with certain property in a manner already communicated or to be communicated to them but without imposing a trust or legal obligation. In such a case the beneficiary will take absolutely. The fundamentals The principal elements of a secret trust are: • intention • communication • acquiescence Silence by the legatee of a secret trust

Only the Court of Protection has the power to execute a Will or codicil on behalf of an incapacitated person. A person cannot delegate the power to make their Will to their attorney, nor can a deputy decide the provisions of a Will or execute it on behalf of their protected person (P). Any Will executed pursuant to an order of the Court of Protection will have the same effect as if it had been executed by P with the formal provisions for the execution of a Will or codicil under section 9 of the Wills Act 1837 (WA 1837) not applying. The jurisdiction of the Court of Protection will cease on P's death. Statutory Wills Under the Mental Capacity Act 2005 (MCA 2005), a person who lacks the mental capacity to make a valid Will or codicil should be placed in much the same position as a person with full mental capacity. The procedure for an authorised person to execute a Will or codicil on behalf of an incapacitated person is contained in Part 9 of the Court of

Testamentary capacity Topic Case name Summary Author Testamentary capacity Ginger and others v Robert Mickleburgh and others [2026] EWHC 100 (Ch) News Analysis: Delusions and dispositions—testamentary capacity challenge succeeds but fraudulent calumny fails (Ginger & others v Mickleburgh & others)Provides useful guidance on what constitutes a delusion and how that might be proved where a particular delusion affected the testamentary dispositions. Joss Knight, 5 Stone Buildings Testamentary capacity Burgess v Whittle and another [2025] EWHC 2633 (Ch) News Analysis: Testamentary capacity, undue influence, and a missing Will (Burgess v Whittle)Elderly or unwell testators can make valid Wills, provided they meet the Banks v Goodfellow test. Oliver Wooding, St John’s Chambers Testamentary capacity Rogers v Wills [2025] EWHC 1367 (Ch) News Analysis: Contracts between family members—capacity—unjust enrichment (Rogers v Wills)Court considers capacity to enter legal relations. Ben Haseldine, 4 King’s Bench Walk Testamentary capacity Oliver v Oliver [2024] EWHC 2289 (Ch) News Analysis: Will set aside for lack of testamentary capacity and undue influence (Oliver v Oliver)This

The issue Person(s) are appointed by a Will or codicil as executors or are appointed to administer the estate (perhaps under an intestacy). A dispute arises as to the validity of that Will or codicil or the entitlement of the administrators to a grant and legal proceedings loom. What do the personal representatives (PRs) do? What risks do they run depending on the course of action they take? The risks of defending or bringing a probate action Any party to proceedings is at risk of being ordered to pay all or some of the costs of them. Moreover, a fiduciary who incurs costs in proceedings relies upon their indemnity against the fund in order to meet those costs. Thus, a PR—whether or not they have a personal interest in the outcome of the litigation—risks an order that they pay the costs of that litigation and of not being able to recover their costs from the estate. In modern litigation that is a sizeable sum. Any assumption that in probate proceedings

This practice note is about the doctrine of undue influence in claims that challenge the validity of a Will. It will focus on: • what is undue influence • the difference between undue influence regarding Wills compared to lifetime transactions • the burden of proof • the standard of proof • the relationship between undue influence and fraudulent calumny • the relationship between undue influence and other grounds of challenging the validity of a Will • how to plead undue influence • practical guidance for running claims in undue influence What is undue influence? A Will is only valid if it is complies with the relevant formalities as to its execution and is substantively valid. A Will that has been procured by undue influence is not substantively valid because the disposition is not a consequence of the testator’s true wishes. Rather, the testator’s disposition has been obtained by coercion or fraud. The distinction between undue influence arising from coercion, and from fraud, is considered further below but the primary focus of this Practice Note concerns coercion. What

A lack of due execution is one of the grounds that can be relied on to dispute a Will. Specifically, CPR 57.7(4) provides that any party who wishes to contend that a Will was not duly executed must set out the contention specifically and give particulars of the facts and matters relied on. In order to validate their Wills testators dying before 1 January 1964 must have followed the execution formalities set out in the Wills Act 1837 (WA 1837). For testators dying on or after that date the Wills Act 1963 (WA 1963) provides relief from the rigidity of those earlier Acts. Amendments in the Administration of Justice Act 1982 (AJA 1982) extend the availability of limited reliefs to those testators who make errors in execution but only in respect of those who die on or after 1 January 1983. As amended, the execution formalities provide that a Will shall not be valid unless: • it is in writing and signed by the testator or by some other person in his presence and by his

Before a Will is admitted to probate the court must be satisfied that the testator knew and approved of its contents at the time that they executed the Will. Assuming the requisite testamentary capacity and due execution, there is a prima facie inference that the testator knew and approved its contents. However, the court can request further affirmative evidence. This may be required where: • the testator suffers from a serious infirmity such as blindness or deafness, or is illiterate • there is a mistake or inadvertence in the drafting of the Will • the circumstances surrounding the drafting and/or execution of the Will arouse suspicion, eg where the person preparing the Will takes a benefit under it (Butlin v Barry The court will no longer assume knowledge and approval merely because the Will was read over to a capable testator or notice of its contents was given in some other way: 'There is no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has

Private Client analysis: The Ministry of Justice (MoJ) has announced changes to probate and Court of Protection fees payable to HM Courts & Tribunals Service with effect from 13 July 2026, including a sharp rise in the probate application fee from £300 to £526 and other inflationary increases.