FAQs: Mental incapacity and invalidity of wills


How is mental incapacity relevant to wills?

Under UK law, there are a number of rules applying to the making and validity of a will. One of these requirements is that the person must have had the mental capacity to write a valid will at the time of its writing.

What degree of mental incapacity is relevant?

The person making the will must have been capable of understanding that they were making a will and that the will would dispose of their assets upon their death. They must also have been capable of understanding the extent of their estate, that is, they must have had an idea of the approximate value of their estate. Additionally, they must have been able to appreciate for whom they would normally be expected to provide, such as their family or dependents.

How can mental incapacity be decided?

A solicitor can decide if the person has mental capacity to make a will. If in doubt, they can get an opinion from a doctor or another appropriate professional. The Mental Capacity Act Code of Practice provides guidance on how to assess someone’s mental capacity. If there is a disagreement about whether a person has mental capacity, the Court of Protection has power to decide.

What happens if mental incapacity is established?

If the person making the will did not have incapacity at the time they wrote it, the will is invalid. If the will is invalid the deceased person will be deemed to have died intestate, that is, without a valid will. The laws of intestacy will then apply to the distribution of the deceased person’s estate.

What if a mentally capable person makes a perverse will?

Sometimes, people make wills the contents of which surprise their friends and family when they die. They may, for example, decide to distribute their estate to some, but not all, of their children. Or they may decide to give a large portion of money to a friend of charity, rather than to family members. There is no bar to doing so, however it may give rise to a challenge by a dependent on the basis that they were not adequately provided for under the will.

For example, in 2007 there was a case regarding the will of Bane Kostic. Mr Kostic had experienced paranoid delusions for some time and changed his will to leave £8 million to the Conservative Party. The judge found that the decision to make this donation was due to “madness” that damaged his “appreciation and natural affection for his son” and caused him to believe that the Conservative Party would save the world from “satanic monsters and freaks”.

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