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What types of evidence can be used on testamentary capacity?

View profile for Leah Merrifield
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In order to make a valid will a person must have “testamentary capacity”. The test for testamentary capacity is explained in our earlier blog “what is testamentary capacity?”.

With an aging population, and an increase in age-related memory problems (including dementia), challenges to wills based on capacity are becoming increasingly common. In the recent case of Leonard v Leonard the High Court held that Dr Leonard, who had an estate worth over five million pounds, did not have testamentary capacity at the time that his purported final will was executed.

Dr Leonard was an “acute businessman” but sadly he suffered with dementia in the later years of his life. Although the court found that Dr Leonard did not have testamentary capacity, it is important to remember that a diagnosis of dementia does not automatically mean that somebody cannot make a valid will. The court will look at all of the evidence on the issue of capacity, not just the medical evidence.

In this case, the court heard expert evidence from two psychiatrists, however the judge made clear that it was not for the medical professionals to decide the issue of testamentary capacity. The judge stated that testamentary capacity is a question for “common sense judicial judgment depending… upon an analysis of the entirety of the evidence”.

There are lots of different sources of potential evidence on testamentary capacity, including:

  1. Medical records from a GP or hospital;
  2. Evidence from a GP, or other medical professional, who knew the person during their lifetime;
  3. Expert evidence from a medical professional who did not know the person during their lifetime, but who has reviewed the medical records and other documents;
  4. A formal capacity assessment;
  5. Evidence from friends, family and other individuals who knew the person in question;
  6. Evidence from the people who witnessed the will; and
  7. The file kept by the solicitor, or other professional, who prepared the will.

If you are concerned about the validity of a will, please contact our specialist private wealth disputes team, and they will be happy to assist.