Disputed Wills – Mental Capacity, the Burden of Proof and the Importance of Seeking Relevant Medical Opinion where there is potential for doubt

Contentious Probate expert Guy Platon takes a look at a recent appeal decision which concerned a probate dispute and an allegation of lack of mental capacity on the part of the deceased Testator.

Often where a will is disputed, this can be on grounds of mental capacity, whereby the case focuses on the capability the will writer (testator) had to understand the actions they were setting out in the Will.

In this case there were two sides to the dispute – each putting forward (or ‘propounding’) a different Will; the Testator’s daughter was seeking to propound a 2014 Will, whilst the Testator’s friend was relying on a 2017 Will.

In the ordinary course of events a later valid Will of course revokes all previous Wills.

Initial Hearing

The first hearing was decided on November 2020, the Court dismissing the daughter’s claim and instead pronouncing in favour of the later Will on the basis that it was valid and, in particular, that the testator had the necessary mental capacity to have made it.

This decision was, however, appealed on a number of grounds, including an allegation that the ‘capacity issue’ was wrong as well as there having been an incorrect application of the burden of proof.


It was widely accepted that the 2014 Will was valid, under which the daughter was the only surviving beneficiary, after her mother, and the Testator’s wife, had earlier passed away.

However, in 2017, the Testator instructed a local firm of solicitors to prepare a new Will, naming his friend from a local boxing club as the principal beneficiary (the First Defendant).  At the same time he signed a letter of wishes that explicitly disinherited his daughter (and her son/his grandson) on the grounds that she had not made ‘any effort to have or maintain a relationship with me’.  This was denied by his daughter.

The testator’s daughter challenged the 2017 Will on the grounds that at the time it was executed her father was not of sound mind, memory or understanding and lacked the requisite testamentary capacity. In addition, it was alleged that the initial trial judge had erred in his application of the burden of proof.

The testator’s mental state from around the time of the 2017 Will (when he was 81 years old) was therefore looked into and he had been assessed at a memory clinic and had scored poorly on a mental examination test.  There were also references to ‘cognitive impairment’ and ‘dementia’, in his records, although this is certainly not unusual given his age and is not especially decisive evidence.

Unfortunately at the time of the preparation of the 2017 Will, the will writers had not obtained an opinion from a medical practitioner in respect of the Testator’s mental capacity.  Such a course of action is not taken lightly and of course hindsight is a wonderful thing, but often if there is enough doubt about their capacity then this is certainly good practice and can prevent any later disputes.

The effect of this was that medical opinion was made after he had passed away which clearly affects its weight.

In any event, the trial judge decided that there was insufficient evidence to show that the testator had the requisite lack of capacity and therefore the 2017 was upheld.


On appeal, the trial judge’s mishandling of the ‘burden of proof’ was looked into.  This burden is generally on the Claimant, or the party bringing the action and having to prove every element of their case.  However, it can sometimes shift to the other party including cases such as this where there is ‘real doubt’ raised in respect of capacity and therefore the burden falls on the propounder of the Will to demonstrate capacity.  In this case it was the upholder of the final will, the Defendant.

On that basis, the appeal court overturned the earlier decision; it found that if the burden of proof had been correctly reversed then it should’ve concluded that the Defendant had failed to discharge it by adducing enough evidence to show that the testator had sufficient capacity at the time of the making of the 2017 Will.


This was obviously a great decision for the testator’s daughter as the earlier Will was therefore propounded instead and she was, of course, its principal beneficiary.

For a layperson it might also seem like natural justice had been served as the father’s estate went to his daughter (whether she was estranged or not) and indirectly to his grandson instead of a friend from his boxing club.

However, these were not really factors at all, although the daughter had suggested that the sudden will change was evidence of lack of cognitive judgement.  The law generally recognises an individual’s testamentary freedom, whether it is counter intuitive or not.

The decision shows how important it is for judges to correctly apply the burden of proof and also illustrates that if the Will writers had obtained a medical opinion on capacity at the time the Will was made then all of these difficulties, and expense, could have been avoided.

If you are looking to create your will, you should seek professional advice to avoid situations like this. Our team of experts can help you.

If you are in dispute over the validity of a Will, we can help. Guy specialises in disputes arising from inheritance and probate, including the interpretation of Wills.

He can be contacted directly on guy.platon@jameso193.sg-host.com, or by telephone at 01254 67 22 22. Alternatively you can talk to us via live chat or complete our online enquiry form and one of our experts will contact you.

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