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Broken bonds – disputing a will on the basis of capacity

Posted on 18 November 2022

Recent reports indicate a high profile will dispute is due to be heard in relation to the estate of the late Reg Bond, who made his fortune in rubber tyres, before turning to training and breeding racehorses.

It is understood that Reg's last will left the majority of his multi-million pound estate to two of his four children. The two children who received much smaller legacies are understood to be challenging the 2019 will on the basis that Reg (who was believed to have suffered from a brain tumour) lacked the capacity to make the will or did not know or approve its contents. If the will was successfully overturned, Reg's previous will from 2017, which is reported to have "stressed equality" between his four adult children, would stand as his final will.

Disputes around an individual's capacity to execute a will frequently make it to trial and we see many reported decisions in this area every year. The starting point is that capacity is presumed when a will is properly executed and rational.

Capacity itself is not a static concept, but is both time and act specific. It is not correct to state that an individual simply lacks capacity. For capacity to execute a will, the relevant test remains that set down in the 1870 case of Banks v Goodfellow. The person making the will, or 'testator' will need to:

  • understand the nature of the act of making a will and its effects;
  • understand the extent of their estate of which they are disposing;
  • be able to comprehend and appreciate the claims to which they ought to give effect, and
  • not be suffering from any disorder of the mind which may pervert their sense of right or exercise of their natural faculties in disposing of their property.

It is usually necessary to obtain a deceased's medical records and to instruct experts to opine on capacity retrospectively. Other evidence such as statements from family members and those who knew the deceased well, can also be crucial. The burden of proving a testator's lack of testamentary capacity falls on the person presenting the challenge.

An alternative challenge to a will based on capacity is that purportedly being run in this case of want of knowledge and approval. Broadly this is a challenge based on the will not having been communicated to a testator in such a way that they know what is in the document and approve the testamentary dispositions it sets out. In both cases, evidence from the solicitors who drafted the will, met with the testator and oversaw its execution will be particularly valuable.

We will await further details of the case with interest.

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