- Succession challenges: arguments regarding the necessary capacity of the testator.
- Allegations of insufficient testamentary capacity: Todd v Parsons & Ors.
- Advice for practitioners: audio or video recordings and expert evidence.
There has always been much discussion around the subject of evidencing testamentary capacity both before and after the death of a testator. It is perhaps unsurprising that succession challenges are often based on arguments to the effect that either the testator lacked the necessary capacity to make a will when they signed it (so that the will is void) or that the deceased was acting under duress or undue influence or that fraudulent calumny was in play (so that the will should be set aside).
The golden rule for practitioners has always been that a medical opinion should be obtained from an appropriately qualified professional when the capacity of a client is in any doubt. However, facilitating this is frequently impractical, particularly when dealing with elderly or unwell clients who may not be
