This is a growing area of law and a growing concern in modern day society. We have an ageing population and dementia and other mental illnesses are becoming more prevalent. The law also allows non legally qualified individuals to draft Wills and they may not be as adapt at spotting issues of capacity. As a result we are seeing more and more Will disputes on grounds of capacity.

Lack of capacity may occur as a result of several factors. A non exhaustive list would include:

• Dementia.
• Lack of full intelligence. Eg. Brain injury at birth or genetic disease such as Down’s Syndrome.
• Traumatic head injuries.
• Affective disorders which affect mood such as depression and mania.
• Schizophrenia.
• Alcohol or drug abuse.
• Delirium.

Even with some of these factors present, it may still be possible to have testamentary capacity. In order to create a Will you must be of sound mind. The courts have developed a test to consider whether an individual has a ‘sound mind.’ The test is known as the ‘Banks v Goodfellow’ test. In order to satisfy the requirements you must:

1. Understand the nature and effect of the Will. This will depend on the complexity of the Will itself.
2. Understand the extent of the property of which you are disposing. This is looked at in a ‘broad brush’ way. You just need a good idea of your assets.
3. Comprehend and appreciate the claims to which you ought to give effect. Therefore you must understand who could have claims on your bounty and consider whether or not they should benefit under your Will.
4. Ensure your mind is not affected by any disorder or delusion which was active in bringing about a disposal which you would not have otherwise made.

If you are concerned that any of the above factors may have been present when a relative has made a Will then please contact us. We can help you to challenge a Will on the grounds of lack of capacity. For further information please contact our specialist legal team who can advise you on making a claim.