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30th August 2019

Testamentary capacity explained

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Testamentary capacity is one of a few limited grounds upon which a Will can be challenged. Testamentary capacity is the legal term used to describe a person’s legal and mental ability to make or alter a valid Will. If the person making a Will (known as the testator) lacks testamentary capacity at the time that the instructions for the Will are given, the Will is invalid.

The test for testamentary capacity was established by the case of Banks vs. Goodfellow (1870), which is still good law. In accordance with Banks vs. Goodfellow, for a testator to have testamentary capacity: -

The testator must be able:

1. To understand that he is making a Will and when the Will will come into effect; and

2. To understand the extent of the property of which he is disposing; and

3. To comprehend and appreciate the claims to which he ought to give effect; and

4. He must not be subject to any disorder of the mind as shall ‘poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties’, in disposing of his property by a Will.

Whilst the Mental Capacity Act 2005, created a degree of uncertainty amongst practitioners as to the correct test to be applied when challenging a Will based upon lack of testamentary capacity, recent case law has confirmed that the Banks v Goodfellow test remains the correct test to be applied when assessing testamentary capacity.

Proving retrospectively that someone did not have testamentary capacity at the time they gave instructions for their Will, can be difficult. To bring such a claim successfully, medical evidence will need to be obtained which supports your claim that the testator lacked capacity, together with contemporaneous witness accounts from those who are able to comments as to the testator’s state of mind at the relevant time.

If the Will has been drawn up by an experienced solicitor, it is likely to be more difficult to succeed in a challenge to the validity of the Will on the basis of a lack of testamentary capacity, however this will depend on the quality and content of the file notes of the solicitor who prepared the Will.

If you wish to dispute a Will in reliance upon lack of testamentary capacity, please get in touch with our friendly and professional team on 0330 311 0885 or complete the contact form to arrange a free initial consultation.