Our Lack of Testamentary Capacity Service
What is Testamentary Capacity?
Testamentary capacity is about whether the testator (the person making the Will) had the necessary mental ability at the time they gave instructions and signed the document.
It does not turn on a label such as "dementia" or "mental disorder" alone, but on what the person could actually understand and decide at the relevant time.
The traditional legal test comes from the case of Banks v Goodfellow and remains central to capacity disputes today.
In broad terms, to have testamentary capacity, the testator must be able to:
- Understand that they are making a Will and what that means
- Understand, in broad terms, the nature and value of their estate
- Understand the claims of those who might expect to benefit, such as close family and dependents
- Weigh up and make decisions about these matters without a mental disorder distorting their thinking
If any of these elements were missing when the Will was made, it may not be legally valid.
How is Testamentary Capacity Assessed?
In a Will validity dispute, capacity is usually assessed retrospectively, after the person has died, with the court and the parties looking back at the person's mental state when the Will was made.
This typically involves analysing:
- Medical records, including any diagnoses such as dementia, stroke, brain injury or psychosis
- Evidence from the solicitor who prepared the Will — their attendance notes, any contemporaneous capacity assessment, and the steps they took to check the testator's understanding
- Evidence from the witnesses to the Will, and from friends, carers and family about the testator's behaviour, memory, confusion or changes in personality at the time
- Expert medical opinion, based on the records, on whether the testator probably had capacity under the legal test
A key concept is the "lucid interval".
Even a person with serious dementia or another condition can have clear periods when they are able to understand and make decisions.
A Will made during such an interval may still be valid if, at that particular time, the person met the Banks v Goodfellow test.
Dementia, Mental Illness and Capacity to Make a Will
Dementia is one of the most common reasons families question a Will, but it does not automatically mean the testator lacked capacity.
What matters legally is the level of impairment, the stage of the illness, and the person's abilities at the time instructions were given.
Someone in the early stages may still understand their estate and the people they ought to consider; in more advanced dementia, confusion or an inability to recognise family members or delusional beliefs can seriously undermine capacity.
Other conditions can also affect Will-making.
Severe depression, mania, paranoia or psychosis may impair a person's ability to weigh information or introduce irrational beliefs about family members.
Where such distorted beliefs drove the terms of the Will, that can be strong evidence of a lack of testamentary capacity.
Who Can Challenge a Will on Capacity Grounds?
Not everyone can contest a Will. Those who can usually bring a capacity-based claim include:
- People named in an earlier Will who have lost out under the final Will
- Family members who would inherit under the intestacy rules if there were no valid Will
How is a lack of capacity proved?
To succeed, you must show that, on the balance of probabilities, the deceased lacked testamentary capacity when the Will was executed. Helpful evidence includes:
- Contemporaneous medical records from around the time of the Will
- Any capacity assessment obtained by the Will draftsman solicitor
- The solicitor's file, including notes of the questions asked and answers given
- Statements from the witnesses to the Will signing
- Accounts from family, carers and friends about the deceased's memory, confusion or irrational decisions at the time
- Inconsistencies between long-held intentions and sudden, unexplained changes in the final Will
How We Challenge a Will On Your Behalf
Challenging a Will for lack of capacity is a step-by-step process. In many cases, our solicitors will:
- Review the Will together with any earlier Wills and the relevant documents to assess whether there is a realistic capacity argument
- Obtain the deceased's medical records and, where appropriate, commission an expert report on testamentary capacity
- Request the Will file from the drafting solicitor — often through a "Larke v Nugus" request — to see what they did to assess capacity
- Consider entering a caveat at the Probate Registry to prevent a grant of probate being issued while the dispute is investigated
- Seek to resolve matters through negotiation where possible, to avoid lengthy and costly court proceedings
- Issue court proceedings to contest the validity of the Will, if necessary
This is a separate ground from undue influence, which concerns whether the testator's decisions were truly their own rather than whether they had the capacity to make them.
The two grounds are often raised together — if you are also concerned that someone pressured or manipulated the deceased, see undue influence in wills.
Time Limits and Why Acting Early Matters
Unlike some other estate claims, there is no single fixed statutory deadline for challenging a Will's validity. The practical constraints are very real, however.
It is far easier to protect your position and stop the estate from being distributed if you act before or soon after probate is granted.
Delay can mean that assets are paid out to beneficiaries, making recovery more complex and, in some cases, impossible. If you have any doubts about the deceased's capacity, you should speak to a contentious probate solicitor promptly.
Lack of Testamentary Capacity FAQs
What is a "lucid interval" in Will-making?
A lucid interval is a period during which someone who normally lacks capacity, for example, due to dementia, is nonetheless able to understand and make decisions clearly.
A Will made during such an interval can be valid if, at that particular moment, the person met the legal requirements for testamentary capacity.
What is testamentary capacity?
It is the legal term for a person's mental ability to make a valid Will — whether, at the time, they could understand that they were making a Will, grasp the broad extent of their estate, and appreciate who might expect to benefit, without a mental disorder distorting their decisions.
How is testamentary capacity assessed?
For the purposes of a dispute, it is usually assessed retrospectively, after death, by reference to the person's mental state at the time the Will was made.
This involves reviewing medical records, drafting solicitor's notes and any capacity assessment, accounts from witnesses, family and carers, and, where needed, expert medical opinion on whether the person likely met the legal test.
Who can challenge a Will on the basis of lack of capacity?
Those with a genuine interest in the estate, typically including people named in an earlier Will who lost out under the final Will or anyone who would inherit under the intestacy rules if there was no valid Will.
How does dementia affect testamentary capacity?
Dementia does not automatically mean the testator did not have capacity.
What matters legally is the level of impairment and the person's understanding at the time instructions were given.
Someone in the early stages may still have capacity, whereas in more advanced dementia, confusion or an inability to recognise family and delusional beliefs can seriously undermine capacity.
What factors can undermine testamentary capacity?
Conditions such as dementia, stroke, brain injury, severe depression, mania, paranoia or psychosis can all affect capacity, particularly where they impair the person's ability to weigh information, or they introduce irrational beliefs about family members that then drive the terms of the Will.
What is the legal test for testamentary capacity?
The test comes from the case of Banks v Goodfellow.
The testator must be able to understand that they are making a Will and its effect, understand the broad extent of their property, and appreciate the claims of those who might expect to benefit, without any disorder of the mind distorting those decisions.
What evidence proves lack of testamentary capacity?
For the purposes of a dispute, capacity is often judged after death, meaning claims rely on evidence such as contemporaneous medical records, any capacity assessment obtained by the Will draftsman solicitor, the solicitor's file and attendance notes, statements from the witnesses to the signing, accounts from family and carers, and any unexplained departure from the deceased's long-held intentions.
How do you challenge a Will due to lack of capacity?
The usual steps are to review the Will and earlier Wills, obtain medical records and, where appropriate, an expert report, request the drafting solicitor's file (often via a "Larke v Nugus" request), consider entering a caveat at the Probate Registry to halt the grant of probate, and pursue resolution through negotiation, or court proceedings, if necessary.
What is the time limit to contest a Will for capacity?
There is no single fixed statutory deadline for challenging a Will's validity on capacity grounds.
The practical constraints matter, though: it is far easier to protect your position and stop the estate being distributed if you act before, or soon after, probate is granted, so prompt advice is important.
Why Work With Our Contentious Probate, Wills and Trusts Team?
- We’ve been named Best Contentious Probate Team at the British Wills and Probate Awards 2025, recognising our legal expertise, courtroom skill, national reach, client care, and transparency.
- We have been ranked as a Top Tier law firm by the Legal 500 for the last seven years.
- We have been recognised by The Times and The Lawyer as a Top 200 UK law Firm.
- Price transparency - we provide our clients with clear cost advice at the outset with ongoing updates throughout the matter. Sometimes, we can pursue a contentious probate claim for you on a no win no fee basis.
- The contentious probate team is led by experienced Partner Helen Thompson, a member of STEP (the global professional association for practitioners who specialise in inheritance and succession planning) and has completed the Advanced Certificate in Trust Disputes.
- All our Contentious Probate solicitors are members of the highly accredited Association of Contentious Trust and Probate Specialists ACTAPS.
- We have the largest team of contentious probate solicitors in the Northwest, ensuring you receive the best legal advice and support.
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It’s the personal touch they offer, including their empathy for your individual case.
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Helen Thompson and Stephanie Ewan lead the team and were always available at the critical times. This involved out of hours working as well as comprehensive management of the resolution.
Legal 500, 2022
Stephanie is very professional and patient. She will help you with any questions you may have.
Legal 500, 2024
Myerson have set themselves apart from most every contentious probate practice in the North West. There is an exceptional level of talent at almost every level. Myerson deal with matters that are often fraught with complexity and emotion in a highly diligent and sensitive manner. When Myerson instruct me as counsel, their instructions are concise and well prepared.
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