IHTM12045 - 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. An exception to this arises in connection with privileged wills (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.

A testator or testatrix must therefore

• be aware that the wishes being expressed 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
• 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.

There is a rebuttable presumption that the testator knew and approved of the contents but there is no presumption if

• the testator or testatrix was dumb, blind or illiterate (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 effect a valid will. A will executed by someone while in this state is void and of no effect. Nevertheless an insane person may have testamentary capacity during lucid intervals.

A will, executed by a testator while so affected by drink or drugs or otherwise as to lack the necessary understanding of his actions, is open challenge and reduction. Other recognised grounds for the reduction of a will, where the testator does not lack testamentary capacity, are misrepresentation, force and fear, facility and circumvention, and undue influence.