Why it’s vital to establish mental capacity when making a Will

When you make or change your Will, the law requires you to understand exactly what you are doing, who you are leaving your estate and personal possessions to and the full implications of this.

In legal parlance, it's known as being 'of sound mind' and in a world where the number of Wills being challenged is on the rise - click here to read more - the importance of establishing mental capacity when drafting a Will has never been more important.

By doing so you can be confident that those you have named as beneficiaries will receive what you intended and also that you have minimised the chance of a costly, stressful and divisive court challenge to your Will later.

Court case

This has been highlighted by a recent case involving cleaner Leonora Da Costa who has been given the go-ahead by the High Court to claim a large part of her employer's £500,000 estate against the wishes of his family.

Harold Tickner made a Will in 2014 leaving the bulk of his estate to Mrs Da Costa. Then, two weeks before his death in June 2015, he made another Will leaving her nothing and instead giving the keys of his home to his nephew, with whom he'd previously fallen out, and his remaining savings to his daughter.

Mrs Da Costa, who cared for her employer on a daily basis after his wife died in 2012, argued that Mr Tickner did not have the mental capacity to change his Will and Judge William Henderson agreed with her.

Incapable of making a new Will

Having heard expert evidence, including from the doctors who had looked after Mr Tickner, Judge Henderson said he had come to the view that the retired waiter lacked mental capacity when he made the 2015 Will and there was 'no real doubt as to the validity' of the 2014 Will.

He said it was no surprise that Mr Tickner had decided to leave the bulk of his estate to Mrs Da Costa given what she had done for him.

This means Mrs Da Costa can go on to challenge Mr Tickner's decision to give his home to his nephew through the courts.

What exactly is mental or testamentary capacity?

The test for establishing whether someone has the capacity to make a Will dates back to a court case in 1870 with language that reflects another age and time.

It was ruled that the person making the Will must not suffer from any mental disorder that shall 'poison his affections, pervert his sense of right or prevent the exercise of his natural faculties'.

In addition they must understand that the Will they are signing will deal with how their estate is distributed after their death; understand and remember the size and contents of their estate and understand that there may be people who have a moral claim on the estate, even if they haven't been left anything in the Will.

Making sure you get it right

One way to prove testamentary capacity is to make sure you use a qualified legal professional to draw up your Will for you as this will ensure that, if advisable, an assessment of capacity takes place and is recorded on the file for future reference.

In addition, it is important to:

• Ensure the original Will is kept safely locked away, preferably by the solicitor who drafted it, and to review it regularly and always after marriage or divorce or the birth of a child;
• Keep your solicitor up to date with your circumstances and priorities so they can answer any questions that arise when the Will comes into effect after you die or if it is challenged;
• Keep the details of your Will private and don't discuss it with other people, even those who stand to benefit from it.

A correctly drawn Will is an inexpensive way of avoiding difficulties for your relatives and friends in the future in the event of your death. It puts you in control of the final destination of your estate.

For help and advice about making or reviewing your Will please contact Wards Solicitors' Wills, Probate and Mental Capacity team.