If you are an executor facing a challenge to the validity of a will – whether through the discovery of a caveat or allegations that the deceased lacked testamentary capacity – the first question is usually simple: does the evidence support the will?
Disappointed beneficiaries often focus heavily on medical evidence. They point to dementia, serious illness, confusion or memory problems and assume that lack of capacity automatically follows.
It does not.
The legal test remains Banks v Goodfellow. In practice, however, these disputes are usually decided by the quality of the evidence showing what the deceased understood at the time the will was made.
The Will File Often Decides the Case
If the will was professionally drafted, the solicitor’s file is often the most important evidence.
A strong contemporaneous attendance note does far more than record “no concerns as to capacity”. It shows that the solicitor actively considered the Banks v Goodfellow test and explains why they were satisfied that the deceased understood the nature and effect of the will, the extent of their estate, and the claims of those who might reasonably expect to benefit.
The most persuasive attendance notes also record any significant changes in testamentary wishes and the deceased’s reasoning for making them.
Timing matters. Capacity should ideally be considered both when instructions are taken and when the will is executed.
This contemporaneous evidence by an experienced professional can be difficult to overcome.
Medical Evidence Has Limits
A diagnosis of dementia or cognitive decline does not prove lack of testamentary capacity.
The court’s focus is narrower: did the condition actually prevent the deceased from understanding what they were doing when they made the will?
A properly directed contemporaneous capacity assessment in accordance with the Golden Rule can be powerful evidence – but only where the assessor understood the legal test and clearly recorded their reasoning.
Retrospective capacity reports can assist, but they involve reconstructing capacity post-death. Courts treat evidence cautiously where it conflicts with strong contemporaneous evidence from an experienced will drafter.
Why Early Action Matters
If a caveat has been entered, early review of the will file and relevant medical records will usually reveal whether the challenge has substance or is simply pressure to delay the administration of the estate.
Many testamentary capacity challenges weaken significantly once the contemporaneous evidence is examined. Early strategic review often allow executors to resist speculative challenges and protect the deceased’s final wishes.
If you would like to find out more and discuss your personal situation do not hesitate to contact me on alistair.rustemeyer@cognitivelaw.co.uk or call 01273 044516.
The author, Alistair Rustemeyer, qualified as a solicitor in 1994 and an accredited mediator in 1999. Alistair is a Full Member of ACTAPS and a specialist contentious probate solicitor in Brighton and Hove. His priority is to resolve estate conflicts smoothly through mediation, protecting your interests without unnecessary court litigation across all contested probate and Inheritance Act claims. For a free initial discussion, contact Alistair at alistair.rustemeyer@cognitivelaw.co.uk or call 0330 400 4499
