What happens if a person making a will lacks testamentary capacity?

If a person making a will (testator) is found to be lacking testamentary capacity, the will cannot be signed and is thus not valid. In such a case either intestacy laws apply or an application can be made to the Court of Protection for a statutory will. The Court makes its decision based upon best interests, taking past wishes and feelings into consideration as well as the person’s likely intentions if they were to have capacity. Consideration of family circumstances and relationships is also necessary. A draft will is thus helpful in support of the application.

People who are eligible to apply to the Court in this regard include deputies appointed for property and financial affairs, attorneys under LPA for property and financial affairs, family members, and professionals such as solicitors. Medical evidence of a lack of testamentary capacity is paramount when applying for a statutory will.

The most important matter for the Court is to determine what the testator is likely to have done if they still had capacity. Copies of earlier wills can be very helpful to assist in this regard, in addition to attendance notes from solicitors and reasons for making changes to the will. Statements made by the individual regarding their intentions prior to losing capacity are useful to the Court. Independent witness statements about family relationships are also beneficial, particularly when disagreements exist amongst relatives.