High Court highlights importance of mental capacity in will making

The importance of having mental capacity when making a will has recently been highlighted by the High Court.

The case of Boast v Ballardi & Ors saw a will cancelled, after a challenge was brought by the client’s nephew, on the grounds that the solicitor failed to ensure that the client had testamentary capacity.

The case saw a client approach a solicitor wishing to revoke his previous will and enduring powers of attorney.  At the time the client was suffering from dementia and had ‘increasingly confused, paranoid ideas.’ It was said that the solicitor was aware of the client’s condition after being advised by his GP that it was likely that the client would never regain testamentary capacity.

Despite this the solicitor accepted the client’s assurance that he was mentally stable and proceeded to make the revised will.

Following the High Court’s decision, the estate was divided according to the previous will made seven years earlier. The court commented that the solicitor had not carried out appropriate investigations on whether the client was capable of carrying out testamentary decisions.  The solicitor had not taken steps such as asking further questions or instructing a qualified medical practitioner to carry out an assessment.

Testamentary capacity refers to the mental capacity of a person making a will at the time the Will was made.  If it is deemed that a person lacked testamentary capacity to make the Will it will be invalid, and the deceased’s estate will either pass on the basis of an earlier Will (if there is one) or under the Intestacy Rules.

Get in touch with our Wills & Probate team

If you believe that someone close to you may have lacked mental capacity at the time of creating their Will and you have lost out as a result, please contact Jordans Solicitors’ Will and Probate Disputes team on 033 0300 1103 to find out how we can help you.