General Requirements

For a Will to be valid it must be shown that the person making it was of a ‘sound mind’ when it was made. This means that they must be aware of the following principles:

• the nature of the act (i.e. the making of the Will) and it’s effects
• the extent of their property passing under the Will
• how the estate will be distributed amongst the beneficiaries and the effect of such distribution
• know and approve of the contents of the Will at the time it was executed

The statutory presumption of capacity has been enshrined in legislation under the Mental Capacity Act 2005 – it is assumed that a person has capacity until the contrary is proved. As a result, any person seeking to challenge capacity must prove that the person who has made the Will lacked capacity at the time it was made.

Challenging a Will

A Will might be challenged if it was executed and the person making it:

• was so affected by alcohol or drugs that they did not understand their actions; or
• was forced to make the Will under duress or undue influence.

As a general principle, there is a rebuttable presumption that the person making the Will knew and approved its contents unless they were unable to speak, had a visual impairment or suspicious circumstances arise (i.e. the Will substantially benefits the person who made it or a close relative of that person).

Why use us?

Having your Will drafted by us provides you with confidence that we would not take your instructions if we were not satisfied that you had capacity at the time you made the Will.

We are required to keep attendance notes when we take instructions initially and also when the Will is signed. Therefore, if the Will is challenged we will be able to provide evidence that at the time it was made you had the requisite capacity.