Testamentary capacity & undue influence

Someone who is providing instructions and executing a Will must have the necessary testamentary capacity (legal and mental capacity) to do so. They must be capable of knowing and approving the contents of a Will.

In addition, they should not have been made to feel under duress from anyone to write their Will in favour or detriment of particular beneficiaries.

What is testamentary capacity?

It must be established that the person (at the time of writing their Will) is of sound mind and capable of understanding:

  • That they are making a Will
  • Broadly, what assets are to be distributed by the Will
  • The effect of making the Will – who will benefit/be excluded by the Will, and being aware of those they might be morally expected to provide for

Proving the Will is invalid via testamentary capacity

If the person did not have the necessary testamentary capacity or did not know or approve of the contents of the Will, the Will may be set aside as invalid if someone challenges it.

Should you wish to challenge the validity of a Will, bear in mind that it can be difficult to prove that someone was not of sound mind. Any challenge to the validity of a Will using this reason will require documentary evidence, such as witness statements and medical reports.

Proving the Will is invalid because of undue influence

A Will may also be set aside if the person who made and executed the Will was experiencing undue influence from another.

The allegation of undue influence is a serious claim to bring and there must be good evidence to support such a claim.

How to challenge a Will using testamentary capacity or undue influence

Substantial evidence is required to make a successful challenge to a Will or execution of a Will under testamentary capacity or undue influence. We advise you to consult a solicitor as soon as possible to review your evidence and assess the strength of your case.

Napthens is among only a few firms in the North West with specialist expertise in inheritance and Will disputes – expertise that has been recognised by the Association of Contentious Trust and Probate Specialists.

We take a supportive and sensitive approach when assisting you with inheritance and Will disputes. This is aligned with a strong technical ability, and the clarity you need to decide the best course of action at this difficult time.

Why choose Napthens?

  • Cases handled with sensitivity and professionalism
  • Advice tailored to your wishes and personal situation
  • Specialists in inheritance and Will disputes