Contesting Wills

July 15, 2016


The number of Wills which are being contested is ever increasing. There are a number of ways that a person may contest a Will. One of the most common grounds to contest a Will is to establish that the testator (person making a Will) lacks sufficient mental capacity to make a Will. The test for mental capacity was established early on in the well-known case of Banks v Goodfellow (1870) which set the bar for what is known as testamentary capacity. This is the mental capacity required by a person to make a Will. One of the other grounds for contesting a Will is ‘want of knowledge and approval’; this is where a testator lacks knowledge or understanding of their Will and does not approve of the contents of the Will.


In the recent case of Burns v Burns [2016] the Court of Appeal upheld the Will of an elderly woman as valid, despite evidence of her decline in mental capacity when the Will was finalised. In the case the testator, Mrs Eva Burns, made a Will in 2003 which gave her half share in the family home to her son Antony. Her other son, Colin, already owned the remaining half share of the property. The remainder of her estate was to be divided equally between Antony and Colin.

In 2005 Mrs Burns made a new Will which removed the gift of property and left her entire estate to be divided equally between Colin and Antony.  This meant that Colin would have received a 75% share of the property and Antony would have been left with 25%.


There was evidence to suggest that Mrs Burns’ mental health had been in decline for some time prior to the execution of her 2005 Will. Sadly she had been suffering from moderate to severe dementia. Antony, understandably, challenged the 2005 Will on the grounds that his mother lacked mental capacity and did not understand or approve the contents of the Will. His challenge and subsequent appeal were both unsuccessful. The court held that Mrs Burns’ 2005 Will was valid on the basis that it was a rational and simple Will. Therefore it was more than likely that Mrs Burns had the requisite testamentary capacity to recognise that she was signing a Will with the contents that she had instructed.


This decision provides a word of warning to those seeking to contest Wills on the grounds of lack of capacity or want of knowledge and approval. If you are seeking to challenge a Will or are an Executor defending a Will and require professional advice in this regard contact a member of our litigation team to discuss you interest further.