Before a will can do anything, the person making it must have had the mental ability to understand what they were doing. As a solicitor taking will instructions, you are often the first — and sometimes the only — person who can assess this and record evidence of it. Get it right and the will stands; miss the warning signs and the document can be set aside years later, after the testator has died and can no longer explain themselves.
This lesson builds that judgement step by step:
- Validity of a Will and the Nature of Capacity — where capacity sits among the requirements for a valid will, and what it broadly means.
- The Common Law Test — the four limbs a testator must satisfy, and how much understanding each one demands.
- Sliding Scale and Delusions — how the threshold rises with complexity, and when a delusion or illness defeats a will.
- Timing of Capacity — the moment capacity must exist, lucid intervals, and the exception for declining capacity.
- Burden of Proof and Evidence — who must prove what, the presumptions, and suspicious circumstances.
- The Golden Rule and Consequences — the practical safeguards to take, and what happens when a will fails.