Prospects and pitfalls for prospective claimants (and defendants)

The issue of capacity will often be one of the first points to be considered in respect of a potential will challenge. A potential beneficiary may well have reason, based on their own experiences of the testator’s life, to think that their capacity may have been impaired. Even without sight of the will file or the testator’s medical records, therefore, it can be clear from an early stage that the issue of capacity merits consideration.

A further advantage of a capacity challenge is that it does not necessarily involve a serious allegation against a third party. This contrasts with the position regarding both undue influence and fraudulent calumny. A will challenge brought on either of these bases involves making serious allegations of misconduct (and often outright dishonesty). Both solicitors and barristers have professional obligations not to put forward allegations that are not at least properly arguable. The risk of breaching this rule, and putting forward a baseless case, can be serious for a claimant; a common sanction will be an order that an unsuccessful claimant pay the defendant’s costs, often on a more onerous basis than in the case of other unsuccessful litigation. All of this means that other grounds for will challenges will often require more extensive (and therefore more expensive) investigation before they can properly be brought.

While capacity challenges are therefore an attractive option for many disappointed beneficiaries, this is not to say that they are without risk. As in other instances of civil litigation, the losing party can usually be expected to pay a substantial proportion of the the victor’s legal costs.

Some of the pitfalls into which claimants can fall include the following:

1. Not making sufficient investigations. In modern probate litigation, the contents of the medical evidence and the will file are often the true battle-ground. Although there can be a good prima facie case as to a lack of capacity based on the client’s own knowledge of the testator, it is risky to bring a claim on this basis alone. It will usually be possible to seek copies of the deceased’s medical records under section 3(1)(f) of the Access to Health Records Act 1990. It will also usually be possible to make enquiries with the solicitors (if any) who prepared the testator’s last will, asking about the circumstances in which the will was prepared (which is known as a Larke v Nugus letter). If the evidence shows that the testator’s solicitors were alive to the issue of capacity, then (depending on the extent to which it was investigated) this can point in favour of the validity of the will, particularly if contemporaneous medical evidence was sought.
2. Not considering the expert evidence available. Any evidence that the testator’s capacity was evaluated during their lifetime will be highly relevant, although not necessarily determinative.  In Scott v Scott [2025] EWHC 2796 (Ch), the Court, in finding that the testator had capacity, placed significant weight on the views of an expert who had assessed the testator during the latter’s lifetime, despite contemporaneous evidence suggesting that the testator showed significant confusion and erratic behaviour (see e.g. [311]). If such evidence is not available, it will often be desirable to consult with a medical expert capable of acting as an expert witness. An expert’s input, at an early stage of litigation, can be invaluable in allowing a prospective claimant to take an informed view of the strength of the evidence.
3. Not taking stock once evidence has been obtained. A strong case, before evidence has been obtained, can afterwards look much weaker. The nature of factual investigations is that one can never be sure what will emerge. Sometimes a case can look much stronger after factual investigation, but in other cases a claimant might need to re-evaluate either their case strategy or the merits of continuing the claim itself.
4. Not understanding the test for capacity. Claimants can fall into error by assuming that capacity is fixed: that once it is lost, it is lost for all time and all purposes. In fact, the cases stress that capacity may fluctuate. The judge’s task is to make a finding, on the balance of probabilities, whether it is more likely than not that the testator had or lacked capacity when signing the will under dispute. The closer events are, in time, to the will in question, the more weight they are likely to be given in the judge’s evaluation. Another error is assuming that capacity is the same for every transaction or every will. In fact, the case law stresses that the level of capacity required is relative to the task at hand: see Scott v Scott (at [291]). Where there is a a simple will, such as one leaving the testator’s entire estate to their spouse, it will be easier to persuade the Court that the testator had capacity than in the case of a will making complex provisions in respect of a large estate.
5. Confusing capacity with diagnosis. The mere fact of a diagnosis is not the end of the inquiry; the question for the Court is whether, as His Honour Judge Paul Matthews put it in Burgess v Whittle [2025] EWHC 2633 (Ch), “the effects of that disorder were sufficiently serious to negate testamentary capacity. A disorder may be slight at first, and become more serious only later” (at [22]). In that case, although the testator had early-stage dementia, the judge found that it was not sufficiently advanced to impair her capacity.
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For defendants, an important preliminary question is whether they are executors or administrators of the estate, or merely beneficiaries. A personal representative who wishes to depart from that neutral stance will need to think carefully about whether this will put them at risk of paying the other side’s costs, should that opposition be unsuccessful.

Other pitfalls faced by defendants are similar to those in the way of claimants. Although a defendant personal representative may have access to more medical records of the testator, it will always be important to consider what further material may be available. It is important for a defendant to consider that material dispassionately in order to reach an informed view as to the strength of the claim.