IHTM12045 | Succession: Wills: Capacity required to make a valid Will

In England, Wales and Northern Ireland, the person making a Will must have reached the age of 18. Although there is an exception to this where the Will is a privileged Will (IHTM12046). In Scotland, a child over the age of 12 can make a Will.

For a will to be valid it must be shown that the testator or testatrix (IHTM12001) was of a ‘sound disposing mind’ when the Will was made, Banks v Goodfellow [1870] LR 5QB 549.

This means that the testator or testatrix must

• be aware that the wishes expressed in the Will will take effect on death

• understand the way the estate will be distributed amongst beneficiaries

• have a recollection of the property that is being disposed of

• understand the nature and extent of the claims on them.

• know and approve of the contents of the Will at the time it was executed.

In law there is a rebuttable presumption that the testator knew and approved of the contents unless:

• the testator or testatrix was unable to speak, had a visual impairment, or was unable to read (the court then requires evidence that the testator knew and approved of the contents.)

• suspicious circumstances arise.

In Scotland, in general a person who is unable to understand the nature and effect of what they are doing lacks the legal capacity to make a valid Will. A Will executed by someone while in this state is void and has no effect. But a person who lacks the capacity to make a Will under the Mental Health Act 1983 might be able to make a valid Will during a lucid interval.

A Will might be challenged if it was executed whilst the testator or testatrix:

• was so affected by alcohol or drugs that they did not understand their actions, or

• was forced to make the Will under duress

It might also be challenged if there were other circumstances that meant the testator was influenced in some way when making the Will.