Will Valid if Testator Had Capacity When it Was Drafted

Challenges to wills based on the argument that the testator (the person who makes a will) lacked mental capacity are becoming more and more frequent and, with an ageing population, this trend looks set to continue.

Most such challenges are made by disappointed family members who were expecting to be beneficiaries under a will and then find themselves not provided for (or inadequately provided for) when the terms of the will become known. One common ground for contesting a will is that it is not rational on the face of it and there was no rational explanation for family members being excluded from benefiting under it.

In a recent case, a man’s son challenged his late father’s will, which left the father’s entire estate to the woman with whom he lived. The father had been diagnosed with multiple sclerosis and had not executed (signed and had witnessed) the will until 17 months after it had been drafted. During that period, the father’s condition had deteriorated significantly.

In the view of the court, the son’s exclusion from benefiting under the will was not irrational on the face of it. Although his father lacked testamentary capacity when the will was executed, he was in possession of his faculties when he had the will drawn up and it reflected his wishes at that time. Accordingly, the court ruled that the will was valid.