Lack of testamentary capacity

The test of testamentary capacity is set out in the case of Banks v. Goodfellow (1870):

“It is essential…that a Testator shall understand the nature of the Act and its effects, shall understand the extent of the property which he is disposing, shall be able to comprehend and appreciate the claims to which it ought to give effect, and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties” 

A few key points to note from this:

  • The capacity threshold for making a will is low; it does not require the testator to have a complete understanding of legal terminology or a detailed understanding of their wealth. They need only understand what a will is, who they might be expected to benefit and broadly the value of their estate. They may not have capacity to manage their own financial affairs.
  • Capacity is recognised to be a lucid concept, so with a testator who has capacity issues the important date is the date will instructions are given. The rule in Parker v Felgate provides that on the day of execution the testator only need recall he gave instructions for a will previously.
  • A will based on “frivolous, mean or even bad motives” is not necessarily invalid.
  • Case law has confirmed the Banks v Goodfellow test continues to apply despite the introduction of the Mental Capacity Act 2005.
  • 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

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.

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.