In an increasingly litigious society, solicitors in Scotland are frequently faced with queries from clients regarding the possibility of challenging wills of family members. Challenging a will is notoriously difficult, however, the three most common grounds for a successful challenge are (i) lack of capacity, (ii) facility and circumvention and (iii) undue Influence. This note will be the first in a four-part series and will consider the issue of capacity.

In order to make a will, the maker (testator) must be capable. Capacity has two essential features: the testator must be old enough (at least 12 years old in Scotland) and of sound mind. It is the second feature which is usually subjected to scrutiny in any legal challenge.

Interpreting ‘capacity’

Capacity is not defined in any legislation, although the Adults with Incapacity (Scotland) Act 2000 does set out how capacity will be judged. Section 1(6) of the Act states that ‘incapable’ means incapable of:

(a)    acting; or
(b)   making decisions; or
(c)    communicating decisions; or
(d)   understanding decisions; or
(e)   retaining the memory of decisions.

Case law

Over the years there have also been various cases looking at capacity. The case of Banks v Goodfellow (1869–70) LR 5 QB 549 sets out in three tests to determine testamentary capacity: the testator must understand the nature of the act and its effects, he must understand the extent of the property of which he is disposing and he must appreciate the claims to which he or she ought to give effect; that is, the nature and extent of obligations which he may have to relatives and others. In the Banks case, the testator suffered from an insane delusion, but the court held this to have no effect on the way in which he had made his will.

The law recognises that there can be different degrees of capacity depending on the nature of the act involved. For example, an individual who suffers from an impairment of capacity may have capacity to carry out a simple task (eg operate a bank account), but not to enter into a more complex legal act (eg make a will). The relevant time at which capacity should be assessed is at the date of execution of the will. This is illustrated in the case of Nisbet’s Trustees v Nisbet (1871) 9 M 937 where a will was executed by a person in an insane asylum. The individual had been confined on the grounds of insanity for several years and died two months after the date of the will. However, the will was held to be valid and effectual as the individual was deemed to have recovered his reason at the date of signing.

Ultimately, capacity will only be judged in the course of legal proceedings by a judge. If a judge deems that, based on the evidence at hand, a testator has fallen foul of the tests outlined in either the 2000 Act or Banks v Goodfellow, then there may be a case to challenge a will on the grounds of incapacity.

Further advice

For more information on testamentary capacity or wills in general, please contact us on 0131 228 8111 or through the website.