Capacity has always been one of the fundamental considerations when drafting a Will. It’s a very sensitive and vital document, which is why lawyers and legal professionals abide by the ‘golden rule’ when taking instructions for and drafting a Will.

Contentious probate solicitor at Jackson Lees, Danielle Blaylock, is here to explain what capacity is and what it means for you.

The so-called ‘golden rule’ confirms a number of set criteria when it comes to making a Will. They make sure that the person making the Will:

  • understands the nature of the Will and its effect,
  • understands the extent of the property which they are passing on under the Will,
  • is aware of the people who the person making the Will would ordinarily leave their estate to,
  • and is free from any delusion of the mind that would cause them reason not to benefit those people.

Further laws like the Mental Capacity Act 2005 specify that a person is considered lacking capacity in relation to something if at the time the person is ‘unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’ This is regardless of whether the impairment or disturbance is permanent or temporary.

The law is also clear about the fact that a lack of capacity cannot be established merely by reference to...

(a) a person's age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.’

As you can imagine, establishing whether someone has, or had, capacity to write a Will is a very sensitive issue. For some, the Mental Capacity Act caused a great deal of confusion about what the right test for capacity is. 

Thankfully, however, a recent case shed some light on the situation. The Court was asked to assess whether a woman’s delusions had caused her to change her Will, and stated that “for a delusion to exist, the relevant false belief must not be a simple mistake which could be corrected. It must be irrational and fixed in nature.” This conclusion has clarified a number of things, particularly by specifying what a delusion is.

Cases like these can be common, with families being concerned about their loved ones’ capacity. Some families are also worried that their loved ones have ‘been poisoned against them.’

These emotive times require attention to detail and expertise, something which the court itself recommends, stating that the right approach takes into account ‘the nature of the belief, the circumstances in which it arose and whether there was any evidential basis for it.’ As you can see, capacity is a very complex matter and requires a great deal of attention.

A legal professional is able to look at all the circumstances and make an objective decision as to the concerns raised together with a careful analysis of the relevant medical records.

When considering a capacity dispute it is important to seek expert advice from a legal professional who can help you know where you stand.

If you would like to talk to one of our empathetic specialist advisers, you can call us free on 0808 296 3258 (also free to call from mobiles) or email Alternatively, visit our website

A Flexible Service

At Jackson Lees we understand that knowing where you stand is one of the most important things. In cases where things haven’t gone as you’ve expected, we can help you get clarity. We will provide you with expert, professional and sensitive legal advice, helping you deal with a wide range of civil litigations matters including dealing with Will disputes and contentious probate.

What Jackson Lees can do for you…

  • We have empathetic and experienced litigators to help you know where you stand
  • Three local offices to choose from:
    • Hoylake 0151 601 8797,
    • Heswall 0151 909 2785,
    • Liverpool 0151 909 5766
  • We also offer assistance if you are in a dispute regarding inheritance
  • We offer a range of funding options, including Conditional Fee Agreements
  • We can meet you at any office, as well as virtually

Let Jackson Lees make things a little easier for you and your family.  Contact our Wills, Trusts & Probate team to book an appointment or to chat through your requirements.  Call us free from either a mobile or landline on 0808 296 3258.