To Have Or Not To Have ' What Is Testamentary Capacity?

• Law Firm: Herrington Carmichael
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Family and Matrimonial, Arbitration & Dispute Resolution, Wills/ Intestacy/ Estate Planning
• Author: Harriet Greener
• Published date: 02 May 2023

In England and Wales, a person making a will must be able to fully understand what they are doing at that time. Legally, this called having 'testamentary capacity'. If a person did not have testamentary capacity when making the will, that will could be challenged.

Contesting a will based on lack of capacity can be a difficult task as a person is presumed to have capacity unless there is evidence which overturns that presumption.

There is a long-established legal test, for determining whether someone had capacity when making their will. This test is known as the Banks v Goodfellow Test. A person making a Will is deemed to have capacity if they can:

1. understand the nature of making the will and its effects;
2. understand the extent of the property of which they are disposing;
3. comprehend and appreciate the claims to which they ought to give effect; and
4. must not be affected by any disorder of mind or insane delusion.

If a person has instructed a solicitor to help them prepare the will, the instructed solicitor will be assessing the person's mental capacity, particularly if the person making the will is elderly. The solicitor will ask numerous questions to ascertain whether the person making the will can satisfy the Banks v Goodfellow test, indicating they have capacity.

The solicitor should then make a detailed note of the meeting and comment on the persons capacity as they see it. If a will is challenged, these notes can be incredibly helpful to a Court.

However, capacity can be fluid. As many people will know, Dementia is a disease which affects a person's brain and cognition. This in turn can led to them losing capacity to make decisions for themselves. Dementia is a progressive disease. Anyone diagnosed with Dementia does not instantly lose capacity. A person can have capacity on the day they are diagnosed and retain capacity for many more years thereafter. They can also have capacity one day and lose it the next day.

If you are considering challenging a...