Many probate disputes in the UK involve the question of the will maker’s mental capacity at the time of making a will. This article by the law firm Speechly Bircham explores how some of these issues can be resolved.

Many probate disputes involve the question of the will maker’s mental capacity at the time of making a will. The general rule is that the will maker must have "testamentary capacity" at the time they give instructions for, and execute, their will. A person is said to have testamentary capacity if they understand the nature of making a will and its effects; the extent of their estate to be disposed of by the will; and who may make a claim against the estate. The will maker also cannot be suffering from any disorder of the mind. This is a very strict test.

However, an exception to the general rule, known as the rule in Parker v Felgate, allows the will maker to have greatly reduced mental capacity when executing the will if the will maker had testamentary capacity when they gave instructions for their will, and those instructions were correctly evidenced in the will.

The Parker v Felgate rule was extended in the recent case of Perrins v Holland and so will be of interest to those drafting wills and to individuals and organisations named as beneficiaries of a will, as well as those who might wish to challenge it.

Robert Perrins, who suffered from multiple sclerosis and was unable to read or write, left his estate to Anne Dooney, his carer. Robert had given instructions for his will on 6 April 2000, when he had testamentary capacity. However the will wasn’t executed until 18 months later, by which time, Robert had lost testamentary capacity.

When the will’s validity was challenged by Robert’s son, David, the court applied the Parker v Felgate rule and upheld the will, judging that because Robert had not altered his instructions for his will while he had testamentary capacity, his instructions remained the same even though by the time the will was executed, Robert was unable to change his instructions even if he had wanted to because he didn’t have testamentary capacity. The question then became, at the time of executing the will, did Robert know that he was making a will, and did he believe that the will he was executing effected the instructions he gave 18 months previously?

Robert’s case is unusual because of the very long period of time that lapsed between him giving instructions for a will and the will being executed.

This case highlights issues and challenges for all parties to a will because it demonstrates that once valid instructions have been given by a will maker, he may be stuck with them even if incapacity intervenes thereafter. Therefore, once a will has been drafted, it is important to execute it as soon as possible to safeguard against potential challenges.

Those wishing to challenge a will face a heavy burden. Unless there is substantial evidence to the contrary, the court will seek to uphold a will where possible. A disappointed beneficiary should consider carefully whether to challenge a will, especially as costs will not automatically come out of the estate.

It would seem from this case that those listed as beneficiaries to a will, whether they are individuals or organisations such as charities, should take heart that legacies intended for them by will makers with testamentary capacity are difficult to challenge, on the assumption that all the other usual formalities are complied with. However, even though the law has evolved to allow the operation of the Parker exception, it is advisable not to rely upon it.

Finally, in order to safeguard against challenges to the will, the will maker should consider informing the beneficiaries and any potentially disappointed beneficiaries of the contents of the will to ensure that there are no surprises once it is too late.