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Alistair Rustemeyer

Partner - Brighton & Hove

What evidence is used to judge testamentary capacity?

When we consider evidence for testamentary capacity, we often have to weigh up a slew of different evidence. In recent cases, the courts have compared the relevance of the drafting solicitor’s evidence on capacity and any medical practitioner’s assessment of capacity of the testator (the person who made the will) at the time that the will was executed.

All evidence is important but the courts are often swayed by some types of evidence more than others and this is a crucial area when weighing up the chances of success when challenging the validity of a will.

The “Golden Rule”

There has been a longstanding “Golden Rule” that if there is any doubt as to the testator’s testamentary capacity, the drafting solicitor should obtain a medical assessment of capacity. However, the courts suggest that a testator can have testamentary capacity on the day they execute their will whilst also having some form of cognitive impairment.  Therefore, the evidence provided by any detailed notes made by a drafting solicitor regarding an assessment of capacity at the time is of considerable importance.

Recent court cases have stressed that there is a strong presumption in favour of capacity when the will has been drafted by an experienced, independent solicitor and in such cases, a will should not be overturned without the clearest evidence of the lack of testamentary capacity.  Therefore, where there is evidence of a solicitor who has taken instructions properly and prepared a will, that evidence, whilst not definitive, is now of central focus.

Therefore, we can say with some certainty that contemporaneous anecdotal evidence of friends of family and medical records years before and after are less paramount than the evidence of an experienced solicitor when it comes to capacity. This can be true even where the solicitor has not obtained a medical capacity report according to the “Golden Rule”.

It may come as some surprise to disappointed beneficiaries that medical records will always be compelling when it comes to testamentary capacity. However, in cases where the will drafter is not a professional or lacks experience, a medical practitioner’s assessment of a testator’s testamentary capacity, medical records and anecdotal evidence of friends and family will undoubtedly become more important.

Worried about your evidence?

Here at Rix and Kay, we can assess the evidence you have to decide whether you will be able to challenge a will for lack of testamentary capacity. If you’re looking to challenge a will, reach out to Alistair Rustemeyer of our Contentious Probate team for further advice of evidence used to judge testamentary capacity. e. AlistairRustemeyer@rixandkay.co.uk  or t. 01273 766 938