For a will to be valid under Jersey law, the person making it must have had testamentary capacity at the time the will was executed. Testamentary capacity refers to the mental ability required to understand and make a valid will.
Where capacity is absent, the will may be challenged and, if successful, declared invalid.
I regularly encounter disputes over capacity in contentious probate matters, particularly where the testator was elderly, unwell, or suffering from cognitive impairment at the time the will was made. These cases demand careful evidence gathering and a clear understanding of how Jersey courts apply the legal test.
Capacity Is Time and Task Specific
A diagnosis of dementia, Alzheimer’s disease or another cognitive condition does not automatically mean that a person lacks testamentary capacity. Capacity is both time specific and decision specific. A person’s mental ability may fluctuate, particularly in the early or moderate stages of cognitive decline, meaning they may have capacity on one day and not on another.
Determining the precise point at which capacity is lost can be extremely difficult, particularly where deterioration is gradual. This difficulty was recognised as long ago as Boyse v Rossborough (1857), in which the court observed: “There is no possibility of mistaking midnight for noon, but at what precise moment twilight becomes darkness is hard to determine.” That observation remains highly relevant in modern probate disputes.
The Legal Test Applied in Jersey
The legal test for capacity to make a will applied in Jersey is derived from the well-established case of Banks v Goodfellow (1870). To have testamentary capacity, a testator must satisfy four requirements.
First, the testator must understand the nature and effect of making a will. They must understand that they are making a will and that it will govern how their estate is distributed on death.
Second, the testator must understand the extent of the property being disposed of. They do not need a precise inventory, but must have a general appreciation of the nature and value of their estate.
Third, the testator must be able to comprehend the claims on their estate. This includes recognising those family members or others who might reasonably expect to benefit, even if the testator ultimately decides not to provide for them.
Fourth, the testator must be free from any disorder of the mind that influences their testamentary decisions. A mental illness or disorder does not automatically negate capacity, but it must not distort or influence the decisions made in the will.
If any of these elements is absent at the time the will was executed, the will may be declared invalid.
The Critical Role of Evidence
Evidence is central to disputes concerning testamentary capacity. The court’s task is to determine, on the balance of probabilities, whether the testator had capacity at the time the will was executed, not before or after.
Common forms of evidence include medical records and GP notes, contemporaneous care or hospital records, statements from witnesses present at the execution of the will, attendance notes from the drafting lawyer or professional adviser, and expert medical opinions provided retrospectively based on the available records.
Where capacity is disputed, expert evidence is frequently required. Medical experts are often asked to provide retrospective opinions as to whether the testator was likely to have met the Banks v Goodfellow criteria at the relevant time. The strength of that expert evidence often determines the outcome.
The Golden Rule and Its Importance
In cases involving elderly or seriously ill testators, courts often refer to the so-called “Golden Rule”. This is a professional guideline rather than a rule of law. It suggests that where there is any doubt about capacity, the will maker should obtain a contemporaneous medical opinion confirming capacity at the time the will is made.
A failure to follow the Golden Rule does not automatically render a will invalid. Medical opinion does not replace the court’s role in determining capacity. However, where no such evidence exists and especially where capacity is later disputed, the absence of medical confirmation can be a significant evidential weakness.
When Concerns Arise
In practice, concerns about capacity often arise where a will is made late in life or shortly before death, the testator had a known diagnosis affecting cognition, the will represents a significant change from earlier testamentary intentions, or close family members are excluded without obvious explanation. These factors do not automatically mean that capacity was lacking, but they commonly justify further investigation.
Taking Action
Testamentary capacity disputes are often complex and emotionally charged, particularly where family members hold differing views about the testator’s mental state. Where there are genuine concerns about capacity, early legal advice is essential. Prompt collection of medical records, witness evidence and professional notes can be critical in establishing whether a will reflects the testator’s true intentions.
If you are concerned about the validity of a will or wish to challenge one on grounds of testamentary capacity, Advocate Alexander English and the Parslows Inheritance Legal Disputes Team can help you assess your position quickly and take decisive, proportionate steps to protect your interests.
Call +44 (0)1534 630530 or contact Parslows Inheritance Legal Disputes Team now for a confidential discussion.