Talk to us today, call your local office

contact us North Berwick - 01620 892138
contact us Dunbar - 01368 862746

Do you have “capacity” to make a Will?

Written by: Lesley Anderson
Category: Private Client
24 August 2022

Making a Will in Scotland is usually a fairly straight forward process. First, you tell your solicitor what you would like to do with your estate after your death. Then, your solicitor will advise you of your options and highlight the impact of Legal Rights which your spouse and children have. After that, your solicitor prepares a draft of your Will. Once you are happy with the content of your Will, you will then sign it in the presence of a witness. This means you have made a valid Will. However, there is one important aspect of making a Will that is often overlooked by those making the Will. That is the assumption that the person making the Will has capacity to make a Will.

What does having “capacity” mean when making a Will?

We need to consider capacity from several angles when a client wishes to make a Will. The first, and perhaps most obvious, test is whether the person making the Will has reached a sufficient age to make a Will. In Scotland, that age is 12 – yes, you need to be at least 12 years old if you want to make a Will in Scotland. As you might imagine, very few clients who wish to make a Will fail this particular capacity check.

The second, perhaps not so obvious test, is the state of mind of the person making the Will. This might not be quite so obvious, the mental capacity to make a Will is critical to ensure the Will is valid.

Are there any tests for mental capacity?

In films, we occasionally watch the hero making their Will on their deathbed. The scene normally starts with them declaring that they are “of sound mind”. Whilst the expression in legal terms may be different, the meaning of “being of sound mind” is clear – that the hero enjoys all their mental faculties.

There are two sets of tests to establish the capacity of the person making the Will. One set of tests are common law tests based on case law. The other set of tests are based on the Adults with Incapacity (Scotland) Act 2000.

Common law tests for capacity

The common law position is stated in the English case of Banks v Goodfellow which was decided in 1870 and which has stood the test of time. In this case, the judges decided that the criteria for determining capacity required that the person making the will must be able to understand the nature of the act and its effects” and also “the extent of the property of which he is disposing”. In addition, the person making the Will must be able to comprehend and appreciate the claims to which be ought to give effect”, in other words, appreciate who might bring a claim against his Will. Finally, the fact that the person making the Will may have an existing mental illness, providing it does not prevent his possessing the faculties mentioned above” will not render the will liable to be overthrown on the ground of the testator's incapacity”.

The test of capacity set in this case has been followed in many Scottish decisions where a Will has been challenged on the basis of lack of capacity.

Statutory tests for capacity

The language used in the Adults with Incapacity (Scotland) Act 2000 is much more straightforward. The act, in Section 1(6) describes “incapable” as being incapable of:

  • Acting; or
  • Making decisions; or
  • Communicating decisions; or
  • Understanding decisions; or
  • Retaining the memory of decisions.

However, the fact that an individual cannot communicate because of a physical disability if that lack or disability “can be made good by human or mechanical aid”.

How do the courts view capacity?

The courts tend to the view that strong evidence of incapacity is needed to overturn any testamentary writing. Even though family members and others may disagree with the contents of a Will, that disagreement is not sufficient to overturn the Will.

We have written previously about how you contest a Will in Scotland and the difficulties you can face when attempting to challenge a Will.

If you would like to make or change a Will, please contact our Wills lawyers in North Berwick and Dunbar, East Lothian by contacting us online or telephoning one of our offices: North Berwick: 01620 892138 or Dunbar: 01368 862746.

Written by:

Lesley Anderson

Lesley has lived in North Berwick for most of her life, attending Nursery, Primary and Secondary School in the area.  Lesley joined Paris Steele in 2002 as a receptionist and during her time here has undertaken a Paralegal qualification in Conveyancing, before progressing to complete the Law Degree and becoming a Partner in 2016. Lesley lives just outside North Berwick with her husband, two children and her two pet Labradors.  In her spare time Lesley enjoys running, Canicross (running with her dogs), walking, skiing and sailing, although injury has prevented her completing the latter over the last few years.  

We understand the importance of getting to know you and our legal services will be individually tailored to meet your needs and resources. We are happy to act for both individuals and businesses.