In order for a will to be valid, a person must have sufficient mental capacity to make it. Laura Abbott of Wright Hassall explains the law surrounding testamentary capacity.

What is testamentary capacity?

To make a valid will, the individual (also known as the testator) needs to have sufficient mental capacity, otherwise known as ‘testamentary capacity’. So, the question is what constitutes sufficient mental capacity to make a will?

The test as to whether a person has the requisite capacity to make a will was set out in the 1870 case of Banks v Goodfellow. Under that test, the testator should understand:

• the nature of his act and its effect
• the extent of the property of which he is disposing
• the claims to which he ought to give effect

They also must not have a disorder of the mind or insane delusion, which ultimately brings about a disposal of his property which he would not have made if he had been of sound mind.

Why is there a rise in contentious probate cases?

Statistics show that people are increasingly likely to make a will as they get older and 79 per cent of retired people now have a valid will. However, after the age of 65 the likelihood of developing dementia roughly doubles every five years and NHS figures estimate that in England there are already around 676,000 people with dementia, with the numbers increasing all the time thanks to an ageing population. 

Therefore, it perhaps comes as no surprise that the number of contentious probate cases are rising year on year and are commonly based on a lack of testamentary capacity. 

How is ‘capacity’ determined?

The capacity threshold for making a will is deliberately low; it does not require a person to have sufficient capacity to manage their own property and financial affairs, for example. Capacity can also be a lucid concept, so some days a testator will be better than others.

It should be noted that the test does not call for a perfectly balanced mind. A will based on “frivolous, mean or even bad motives” is not necessarily invalid. Similarly, the test does not require a full understanding of the legal terminology, or the testator to provide a detailed account of their wealth. 

The introduction of the Mental Capacity Act 2005 caused some confusion as to the correct test but case law has confirmed the Banks v Goodfellow test continues to apply. Mental capacity will be presumed if the testator left a will which appears to be rational and contains no irregularities. If there are question marks, medical evidence will be required but it is difficult to be accurate retrospectively.

How has testamentary capacity been applied in recent law?  

Recent case law has increasingly found in favour of testators having testamentary capacity, particularly where the will has been professionally prepared. The court’s view appears to be that experienced solicitors would not prepare a will for a person if they feel they did not have capacity.

In Hawes v Burgess [2013], the judge said it would be a “very strong thing” to find that the testator did not have capacity to make a will when it had been prepared by an experienced and independent solicitor following a meeting with her, where that solicitor had read the will back to her and considered (and had recorded in an attendance note) that she was capable of understanding the will. He said that a will so drafted by a solicitor “should only be set aside on the clearest evidence of lack of mental capacity”. The solicitor’s evidence was preferred to medical evidence obtained retrospectively because it was not contemporaneous and did not have the benefit of the practitioner having met with the testator.

This precedent has been followed in subsequent cases, most notably in James v James [2018]. Here, the evidence of the solicitor was preferred even though she was criticised for failing to obtain a contemporaneous medical opinion and for failing to record her opinions on capacity in her attendance notes.  

Problems with capacity – not necessarily amounting to a lack of testamentary capacity – can however support a claim of lack of knowledge and approval alongside some other suspicious circumstances. For example, physical frailties, a radical departure from previous terms, apparently irrational exclusions of beneficiaries, obscurities on the face of the will (such as unusual spelling errors) and concerns over the influence of a beneficiary in the will preparation can invalidate a will – as it did in Hawes v Burgess.

About the author

Laura Abbott is an Associate in the contentious probate team at Wright Hassall, and is a member of the Society of Trust and Estate Practitioners (STEP).

See also

Disputing whether a will has been validly executed

How to write a will

Find out more

Make a statutory will on behalf of someone else (Gov.uk)

Mental Capacity Act 2005 (Legislation)

Image: Getty Images

Publication date: 29 November 2019