The neighbour, the carer and the old friend – the complex world of testamentary capacity

The relationships made by people in their later years are complex and as a result so are the wills the elderly make. Perhaps children have moved away and a bond has grown between the testator and their long term friend and carer. Perhaps a neighbour has become, over the years, more like family than those with whom they share a blood tie. For these reasons and many others, solicitors are asked to make wills for clients in the last years of their life that break the expectation that the wealth of the older generation will benefit the younger. Solicitors are reporting a rise in contentious probate litigation and the Law Commission has turned its attention to this issue and will examine it in its forthcoming Wills Project which has a stated aim of reducing ‘the likelihood of wills being challenged after death, and the incidence of litigation’. Whatever the reasons, the distress cause when “family” is disinherited by an elderly testator can have expensive consequences and lead to long-lasting rifts within families. This paper will explore why so many challenges are made to the validity of wills, in particular on the grounds of lack of capacity, and examine whether it is possible to create a simpler, more workable test for capacity that will also provide the protections necessary to preserve the autonomy of often vulnerable testators.
The first part of this paper will explore the current definition of testamentary capacity and the means by which the testator’s lack of capacity is determined. The second part will examine our obligations to those with impaired capacity under the UN Convention on the Rights of Persons with Disabilities. The third part will examine why there are so many legal challenges to wills, before the final part analyses the difference between capacity and autonomy and considers the inherent difficulties with any simple, singular notion of capacity.