Capacity is the most pleaded ground of will challenge and the most misunderstood. The legal question is not whether the testator was old, ill, forgetful or diagnosed with anything; it is whether, when instructions were given and the will executed, they understood the nature of the act, the extent of their property and the claims of those with a call on them. Plenty of people with significant impairment retain that understanding; some apparently sharp people, on the evidence, did not.
The evidence that decides
Capacity cases are decided on records: the medical file across the relevant period, cognitive assessments and prescriptions and admissions; the drafting solicitor's attendance notes recording how instructions were given and what the testator knew of family and property; and the observations of the attesting witnesses and those who dealt with the testator in ordinary life. Expert evidence, geriatricians and old-age psychiatrists reconstructing capacity from the records, frames the material, but courts weigh the contemporaneous accounts of those present over retrospective opinion.
The careful solicitor's file
Sound practice with elderly or ill testators anticipates the challenge: instructions taken alone, away from interested family; the will read over and understood; capacity considered and noted; and where real doubt exists, a medical opinion obtained at the time of execution. Files built that way defeat most challenges before they issue. Files showing a beneficiary arranging the appointment, present for instructions and driving the testator home invite the fight, and often deserve it.
Realism for both sides
For challengers: suspicion is not evidence, the burden ultimately rests on proving the will or displacing it on the materials, and a claim that cannot point to something concrete in the records rarely survives assessment. For defenders: a late will departing from a lifetime pattern, made in impairment and benefiting its procurer, will be scrutinised no matter how correct the formalities. Both sides should have the records assembled and expertly reviewed before pleadings, because that review settles most of these cases one way or the other.
This article is general information, not legal advice. For the full practice area, see Contested Wills and Probate Litigation, or contact the practice to discuss a matter in confidence.