What is testamentary capacity?

Testamentary capacity refers to the mental capacity or soundness of mind that a person must possess to create or alter their Will. This legal requirement helps safeguard the integrity of the Will-making process and ensures that the testator's wishes are expressed freely and without undue influence. It is important to appreciate that testamentary capacity is different to general mental capacity.

Testamentary capacity is usually presumed unless somebody presents evidence to cast doubt on this presumption. Evidence may be produced in the form of an expert medical report showing that the deceased at the time of executing their Will was suffering from an impaired ability to remember, think or make decisions. If any doubt as to testamentary capacity is raised, the burden of proof shifts to the person propounding the deceased’s Will to demonstrate that the deceased did in fact have capacity.

What Must the Testator Be Able to Do When Creating a Will?

The testator must, at the time of making their Will, be able to:

  • Understand and appreciate the nature of their acts and the effects of these

  • Understand the extent of the property to which they are disposing

  • Comprehend and appreciate any moral claims to which they ought to give effect

The testator must also not be suffering or affected by any disorder of the mind or delusions which would cause them to dispose of their property in a way that they would otherwise not have chosen to do if they were of sane mind.

Contesting a Will Due to Lack of Testamentary Capacity

Contesting a Will on the grounds of lack of testamentary capacity involves challenging the validity of the Will by arguing that the person who made it (the testator) did not have the mental capacity to understand the nature and effect of their actions.

You may have suspicion that a Will is invalid due to a lack of testamentary capacity because of the following:

  • The Will seems to contradict earlier agreements and promises that were discussed with the testator

  • You recall that the testator was suffering from a condition (such as dementia) at the time the Will was created, so testamentary capacity is called into doubt

  • The Will does not seem to account for you or others who you would have expected to benefit from its provisions

  • You have concerns that the Will doesn’t reflect the deceased’s true wishes

Contesting a Will based on a lack of testamentary capacity requires careful consideration of the evidence and legal strategies involved. It is essential to seek guidance from legal counsel to navigate this process effectively, due to the difficult landscape it entails.

How Can Culver Law Assist Me?

At Culver Law, we understand the importance of testamentary capacity, ensuring that our clients get a fair outcome if they suspect issues with the validity of a Will. Some of the ways in which we can assist include:

  • Consultation and Assessment - We offer thorough consultations to assess the validity of claims regarding testamentary capacity. Our solicitors meticulously examine the circumstances surrounding the creation or modification of the Will, including medical records and witness testimonies.

  • Legal Representation - Our team provides dedicated legal representation for clients involved in testamentary capacity disputes. Whether you are contesting a Will or defending its validity, we advocate for your interests with skill, determination and expertise.

  • Mediation and Negotiation - We understand that contentious disputes can be emotionally draining and financially costly. Whenever possible, for your best interests, we explore avenues for mediation and negotiation to achieve amicable resolutions outside of court.

  • Litigation Support - In cases where litigation becomes necessary, our solicitors are adept at navigating the complexities of courtroom proceedings. We provide robust litigation support, presenting compelling arguments and evidence to safeguard your rights and interests.

  • Appealing a Court Decision - If you are dissatisfied with a court decision regarding testamentary capacity, our experienced team can assist you in pursuing appeals to seek a fair and just outcome.

Why Choose Culver Law?

Our solicitors specialise in handling testamentary capacity disputes with precision, empathy, and professionalism. We recognise the importance of preserving the wishes of the testator while ensuring fairness and justice in resolving disputes.

  • Extensive Expertise - Our solicitors possess extensive experience and expertise in handling testamentary capacity disputes, ensuring that your case is in capable hands.

  • Compassionate Approach - We understand the sensitive nature of these disputes and offer compassionate support to guide you through every step of the legal process.

  • Tailored Solutions - Every case is unique, and we tailor our approach to suit your specific needs and objectives, striving for the best possible outcome.

  • Client-Centric Service - Your satisfaction and peace of mind are our top priorities. We prioritise open communication, transparency, and responsiveness to ensure that you are fully informed and supported throughout your case.

Don’t Navigate This Complex Legal Terrain Alone

At Culver Law, we are here to ensure you get a fair outcome. If you wish to assert a challenge against a Will based on a lack of testamentary capacity, please contact a member of our team as a matter of priority.


What should I do if I suspect testamentary incapacity in a Will?

If you have any concerns about testamentary capacity in a Will, it is crucial to seek legal advice promptly. Our experienced solicitors can assess the situation, gather relevant evidence, and advise you on the best course of action.

How much do your solicitor services cost?

Our fees vary, based on the complexity of the case - this will be discussed in our initial consultation. We will always provide you with a quote before commencing work, and we will not proceed with our work until you have agreed to our fees and the tasks we are instructed to complete.

How can I schedule a consultation with your solicitors?

To schedule a consultation with our experienced testamentary capacity solicitors, simply contact us by phone, email, or by filling out a form online. We are here to provide you with the guidance and support you need during this challenging time.

Can testamentary capacity disputes be resolved outside of court?

Yes, testamentary capacity disputes can often be resolved through mediation, negotiation, or alternative dispute resolution methods. However, if a satisfactory resolution cannot be reached, litigation may be necessary to resolve the dispute. These are all aspects we can assist you with.

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Culver Law, London
44 Southampton Buildings
0203 633 6226
Company No. 13313009

Culver Law, Cambridge
9 Hills Road
01223 653010

Authorised and Regulated by the Solicitors Regulation Authority. SRA Number: 820401.

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