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Mental capacity - a case law review - Tociapski v Tociapski

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Mental capacity - a case law review - Tociapski v Tociapski

We have looked at the cases of Banks v Goodfellow and Hawes v Burgess when considering mental capacity and lacking knowledge and approval as a ground for challenging the validity of a Will.

Another key case is Tociapski v Tociapski where two sons fell into dispute over their father’s Will.

It is an interesting case considering how a person’s impaired judgment does not always mean that they do not have the necessary capacity to execute a Will.

Tociapski v Tociapski

In this case, the claimant and the defendant were the sons of Mr Tociapski who had made a Will in 2007, leaving his estate to his two sons (the claimant and the defendant). In 2009 Mr Tociapski made another Will leaving the whole of his estate to only one of his sons, the defendant. The other son, as claimant, sought to challenge the validity of the Will on the grounds of lacking knowledge and approval as well as undue influence.

When the case was heard at court, it was concluded that Mr Tociapski had impaired judgment and impaired capacity at the time that the 2009 will was executed but did have mental capacity.

It was found that the contents of the 2009 Will had been read to Mr Tociapski by the defendant son, who was his long term carer and a person upon whom Mr Tociapski was entirely dependent upon. It was concluded that reading the Will aloud to Mr Tociapski was insufficient in demonstrating that he understood and approved of the Will. As a result, the will was deemed invalid and it was set aside.

The case provided us with some key considerations when looking to consider whether a testator had due knowledge and understanding. Some examples include:

  • The Will contains spelling mistakes or terminology or language that is unusual for the testator;
  • The Will contains untrue statements;
  • The Will contains a radical change in disposition made without a rational explanation, or that there is on rational explanation for the dispositions generally;
  • The most obvious beneficiaries, especially those who were named in a previous Will, are no longer mentioned;
  • Important assets, such as property, held within the testators estate are not specifically mentioned or dealt with;
  • The Will was read to the testator, due to a disability and/or impaired capacity; and
  • Frailty or vulnerability of the testator and his reliance on the beneficiary who benefits greatly from the Will.


No two cases are the same. Just because one case settled a certain way, does not necessarily mean that a similar case would conclude in the same manner. There are an infinite number of variables between cases, and so what is appropriate for one case, may not be for another. This includes the approach taken and the evidence required from each party to evidence their position. However, we can use the outcomes of earlier cases to consider how a court may interpret certain aspects, which is why it is so important for us to consider case law.

Some cases may require expert medical evidence when considering mental capacity however, parties must remember that the provision of such evidence is expensive and can be treated with caution by the courts. Both parties must ensure that they are keeping costs as low as possible during proceedings.

When a party is seeking to challenge the validity of a Will that has been professionally drafted, it is important to remember that a court Will always err on the side of caution, when considering whether it should be deemed invalid.

If a party is seeking to challenge a Will, as they have been removed as a beneficiary, it may be more advantageous for that party to request that the defending party prove the validity of the Will.

If you believe that you may have grounds to challenge a Will, please get in touch with our specialist team who will be happy to discuss your matter with you. Call us on 0161 696 6178.