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Validity of Wills - Capacity to make a will (Testamentary Capacity)

In order to make a will, a testator must have the mental capacity to do so.  One of the most common grounds for challenging a will is to claim that the testator did not have capacity when the will was made.   If the testator did not have capacity, the will is invalid – the estate will not pass under that will but instead under a previous will (if there is one) or under the rules of intestacy.

What is the test for ‘testamentary capacity’? and what can be done to prove that the testator has(d) capacity?

Testamentary Capacity

The question is not (as you might expect) decided under the terms of the Mental Capacity Act 2005 but instead by a set of criteria established by the court in a legal case Banks v Goodfellow.  This test was most recently challenged and upheld by the High Court on appeal in the case of Clitheroe v Bond 2021

The test for capacity established in Banks v Goodfellow is a three part test;

  1. The testator must understand the nature of the will and its effect (sound mind).
  2. The testator must know the extent of their estate (assets) being disposed of under the will (sound memory)
  3. The testator must understand who their potential beneficiaries are (who they ought to benefit) (sound understanding).

Capacity can fluctuate, but the testator must have had capacity when he executed his will[1].

The question of whether a testator had capacity will depend upon the facts of each particular case.   There have been lots of cases since Banks v Goodfellow, in which the courts have been asked to consider how to interpret the capacity test and how the test applies to particular circumstances.  For example, does the second criteria require a testator to remember the detail of all of their assets? (the answer is no, a testator must have the ability to understand but it is not a memory test – Harwood v Baker).  

The third part of the test:  whether the testator understands their potential beneficiaries (who they ought to benefit), is arguably the most frequently scrutinised, since if a will is challenged it is generally by a person who expected to be included in the will, but was not. 

The question is firstly whether the testator knew who they should benefit – did they remember or have the ability to remember those who would expect to be included? If they did, but nevertheless decided to exclude them, the next question is whether this decision was reached with a sound mind or whether it was the result of a delusion of the mind such that it could not be said that the testator had capacity to make the decision?  This was the issue which arose in Clithero v Banks

In this case, the testator (mother) had three children.  One daughter had died shortly before the testator made her will. She was survived by her second daughter, Clithero and her son, Banks.  In her will, the testator left her entire estate to Banks, excluding Clithero.   The testator left a note explaining why she had done this – including various allegations of ill behaviour on the part of Clithero.  Clithero argued that the reasons given were not correct and were completely irrational – based on a perception of circumstances which were far from reality such that it could not have come from a ‘sound mind’.  Clithero suggested that the reason for the testator’s ‘delusion’ was her extreme distress following the death of her first daughter.   The will was defended by the son, Banks.  In this case, the court agreed with Clithero and the will was set aside as invalid.

This concept of whether a testator had a ‘delusion of the mind’ is a difficult one and raises questions of reasonableness.   If a testator has chosen to do something objectively unreasonable, is there a risk that their decision will be overturned by reason of incapacity?

What can be done to prove capacity?

A will drafter must always be mindful of the question of capacity and if there is any doubt, they should take steps to satisfy themselves that the testator has capacity, especially when a testator is very elderly or unwell and/ or making a will which is likely to be controversial.

In the case of Kenward v Adams, Lord Templeman provided a set of guidelines now known as ‘the Golden Rule’.   If the guidelines are followed, it should be harder for the will to be challenged on grounds of lack of capacity.  The guidelines (which are best practice) are;

  1. Obtain a medical report on the testator’s capacity
  2. Ask the medic to be present when the will is signed (ideally by being witness to the will)
  3. Keep a careful attendance note of the steps taken, the will instructions, reasons given and why the will writer is satisfied as to capacity.

If a testator is making a controversial will, he should also record a clear note of the reasons for his will and leave this note with the will.  

If you are concerned about a will or you are worried about a will being challenged, please contact Anna Neil on Taunton 01823 745 777 or anna.neil@maitlandwalker.com



[1] The question of when a testator with fluctuating capacity is, itself, a complicated question and this is a simplified analysis.