About 50% of the UK adult population have written a will. And 36% of people plan to wait until they are over 65 to make a will.

Further, over two thirds of wills have been updated; people write their will – and rightly so – review and update them to include children and grandchildren, husbands and wives, and changes in their own life.

In summary, there are a great deal of people writing their first will over the age of 65, with others re-writing previous wills.

Why is this an issue?

The starting position under English law is that a person is free to dispose of their assets as they see fit.

However, when the person is elderly or in poor health when writing or amending their will, their mental capacity to understand what is going on may be questioned. If the person makes a will but does not have the capacity to make a will then the will following their death can be challenged.

What steps can be taken to prevent a will being challenged?

If you appoint an experienced and knowledgeable solicitor then they should initially assess your capacity and if they have concerns then they should follow the  ‘golden rule’. It is not mandatory, but it is legal good practice. In the Kenward v. Adams case, dating from 1975, the judge ruled:

“In the case of an aged testator or a testator who has suffered a serious illness… the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator”

A testator is the person writing the will.

Serious illness covers a wide range of conditions from dementia to stroke, Parkinson’s disease to cancer as medical professionals have considered these as being capable of affecting capacity.

A solicitor or other legal advisor will always write detailed notes when meeting a client and these can be referred to if, later, the will is contested. A medical practitioner’s review of the client, if they are elderly or infirm, strengthens these notes.

Contested wills are on the rise

Wills are increasingly being contested – the UK has seen a 56% increase in the last 5 years. 40% of these have been queried due to alleged lack of capacity of the testator. If your legal adviser asks you or your family member about mental capacity, this can feel awkward or insensitive. It isn’t meant to be; it is the sign that your legal advisor is doing a thorough job, ensuring your will is well-written, and protecting it, should it be contested in the future.

If you need further information about any aspect of writing a will, please contact Jenny Barron on 01756 692866 or email jenny.barron@awbclaw.co.uk.

Solicitor and Director, Society of Trust and Estate Practitioners.

Further reading:

Inheritance Tax Planning – 7 key strategies to mitigate tax

What is the National Will Register? And should you use it?

5 Frequently Asked Questions: Making your Will

GovUK: Mental Capacity Act

9 February 2026