Testamentary Capacity and Mental Health: Key considerations when making a Will

When making a Will, one of the most important concepts is testamentary capacity. In simple terms, testamentary capacity refers to a person’s legal ability to understand what they are doing when making a Will and to make decisions about how their estate should be distributed after their death. This depends on their mental ability to understand the Will-making process and make informed, independent decisions at the time the Will is signed.

With increasing awareness surrounding mental health conditions and cognitive decline, questions around capacity are becoming more common, particularly when a Will is challenged after someone has died.

Understanding how testamentary capacity works and the role mental health can play can help ensure your wishes are respected and reduce the risk of costly disputes.

Testamentary capacity is determined when a Will is made. In order to pass the legal test, the person making the Will must prove they understand:

• That they are making a Will and what it does
• The property and assets that will be included
• Who will be listed as beneficiaries and executors
• That they can make decisions free from undue influence

It’s important to understand that a mental health diagnosis does not automatically mean someone lacks testamentary capacity. Mental illnesses or cognitive impairments that are managed effectively cause no issues when going through legal processes.

However, there are instances where mental health conditions affect a person’s decisions and mental capacity. Conditions such as depression, anxiety, bipolar disorder, schizophrenia, and dementia may raise questions about capacity, but they are not decisive on their own.

Where mental health conditions are involved, the main component of establishing a person’s capacity is whether or not they fully understand the decisions they made when drafting a Will. Someone may lack capacity for a period of time with conditions such as dementia, but have full capacity during other times. Timing and evidence are therefore crucial to ensure that any decisions are made with the right intentions and to the best of the person’s ability.

There are a range of scenarios that can lead someone to challenge a Will on the grounds of testamentary capacity, for example, when:

• The Will significantly changes from previous versions
• There have been significant or unexpected changes in beneficiaries, particularly if close family members are excluded
• The Will was made shortly before death
• The testator had known mental health issues or dementia

If a Will is found to be invalid due to lack of capacity, the estate may pass under an earlier Will or, in some cases, under the rules of intestacy. This can also lead to costly and emotional disputes.

In order to protect a Will from future challenges relating to mental capacity, expert legal advice is a good place to start. An experienced solicitor will assess capacity through the correct legal process, ask detailed questions and keep clear records of any instructions given.

Additionally, medical opinions may need to be obtained when the Will is being made, which can be a helpful precaution where there is a diagnosis of dementia or other cognitive conditions. This can also serve as vital evidence if the Will is later challenged.

Having a Will drafted by a professional also comes with additional legal protections as opposed to a DIY or online template, helping to demonstrate that the person understood the process and their decisions.

It is generally advised to have a Lasting Power of Attorney (LPA) in place alongside your Will when health or mental capacity issues are identified.

If you are planning ahead and thinking about your future capacity, putting a Will and Lasting Power of Attorney in place can bring real peace of mind. Our friendly team of experts are here to support you with clear, compassionate advice every step of the way. If you would like some guidance and reassurance, please get in touch to arrange an appointment.

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