The Importance of Capacity When Making a Will

Mental Capacity

For a Will to be a valid document the person signing the will (‘the Testator or Testarix’) must have capacity. Capacity can be assessed by looking at the testator’s decision making abilities and understanding on the date the document was signed. There is a presumption that a properly executed Will is made by a person with capacity. However this can be challenged with evidence.

The Testator must understand what he or she is doing. Any Will entered into where it can be shown that the Testator did not understand will be void. Key elements of this are;

  1. The Testator must understand the information relevant to the decision.
  2. The Testator must be able to use or weigh up any information when making any decisions in relation to the Will. So the Testator should understand what might happen as a consequence one way or another.
  3. The Testator must be able to communicate their decision. Communication can be verbal, using sign language, writing information down or any other means.
  4. A Testator will likely lack capacity if they suffer from a disorder of the mind. A disorder of the mind would cover any mental disorder that alters the Testator’s ability to make a decision or comprehend their decisions.

Please bear in mind that a person will not to be treated as unable to make a decision merely because they make an unwise decision.

If you have reasonable grounds to believe that your loved one lacked capacity when signing their will and you would like some advice please contact Sharon Matchwick on 01992 558 411

or click here:


This article deals only with capacity and does not cover other options that may be available if you have reasonable grounds to challenge the validity of a Will.

Worrying number of older adults do not have a Will

Independent research conducted by Breeze & Wyles indicates that around half of UK adults have not written a will. The research goes on to indicate that in older people this number rises considerably with the percentage rising to over 60% for over 60s.

The certainties that arise from having a will should not be understated. We set out four reasons why you should make a will

  1. If you die without a will the law will apply to distribute your estate. This rarely reflects what people making wills would wish particularly if they have a spouse;
  2. A will gives certainty to the family of someone who has died at what is a very difficult and stressful time;
  3. Some of your family may be financially dependent on you and by not making a will it is always possible that this person may not be provided for adequately on your death compounding the grief that they feel at your death;
  4. There are legitimate ways in which you can reduce the tax you will pay by dealing with your estate in an appropriate way on your death. Without a will this is not possible.

If you do not have a will and any one or more of the above four items concerns you contact us on 01992 558411 and ask for Donna Collins or Patrice Lawrence.