Contested Will Claim Succeeds On Capacity

• Published date: 16 March 2022
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Osbornes Law
• Author: Katie de Swarte

A sad case in which a bereaved father made a will without the requisite mental capacity to do so has clarified who bears the burden of proving testamentary capacity. In these types of cases, the burden of proving these cases can be far from straightforward.

Our specialist dispute lawyers are experienced in contested wills and testamentary capacity claims and are known for their sensitive but incisive approach to the issues. The starting point in such claims is that there is a presumption of testamentary capacity, but where there is sufficient evidence of mental impairment or lack of testamentary capacity on the part of the testator, the burden of proof shifts to the other side.

Slight evidence will not be sufficient to reverse the burden of proof, but if real doubt is raised, it is then for the propounder of the will to prove the deceased did have capacity.

What was the case about?

This was an appeal ruling following confusion over how the burden of proof should be treated in a capacity case, which led to an error on the part of the District Judge.

The deceased made a will in 2017 in tragic circumstances. He was highly vulnerable, having lost his wife five months earlier and his son four weeks before that. Just over two months before making the will, he had significantly failed a screening test for cognitive impairment.

The deceased had made an earlier will in 2014 which benefited his daughter, but he explicitly excluded her in the 2017 will. She brought a claim on the basis that her father lacked testamentary capacity, and was not of sound mind, memory or understanding at the time.

The district judge decided that rather than getting bogged down in the issue of burden of proof, he would proceed on the basis that the daughter bore the burden of proof, and see where that...