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Insights // 29 July 2021

Making a Will - The Test for Mental Capacity

Partner Caroline Casagranda, in our leading Wills, Probate, Tax & Trusts team, explains the criteria that must be satisfied when assessing mental capacity.

The number of people living with Dementia in the UK is projected to nearly double from 850,000 to 1.6 million by 2040, mainly due to an ageing population (according to Dementia UK). Therefore, ensuring that the right tests and assessments are followed to establish that a person making a Will (the “testator”) has capacity to make the Will (known as “testamentary capacity”) is becoming increasingly important.

The test for testamentary capacity was established in the case of Banks v Goodfellow (1870) LR 5 QB 549. The testator must:

  1. Understand the nature of the act of making the Will and its effects;
  2. Understand the extent of the property of which they are disposing;
  3. Be able to comprehend and appreciate any claims which could be made against their Estate; and
  4. Not be suffering from a “disorder of the mind” which impairs or influences the above factors.

The Mental Capacity Act 2005 (MCA) has introduced an additional statutory test for mental capacity. This has understandably caused a long running debate over which test should apply. This has finally been answered in the recent case of Clitheroe, Re Probate [2021] EWHC 1102 (Ch) which confirms that, when assessing testamentary capacity, the Banks v Goodfellow test should be followed both by Will writers and medical practitioners. It should also be applied retrospectively by the court in contentious probate cases.

The testator must have capacity both when instructions are given to draft the Will and at the time the Will is signed which can create issues where the testator’s capacity is diminishing over time. Where a solicitor is making a will  for an elderly client or one who has been seriously ill, they should therefore follow the “golden rule” – that is to have a medical practitioner witness the Will and document their examination of the testator.

However, this is a rule of good practice and is not conclusive evidence that the testator has/had testamentary capacity. In the recent case of Hughes v Pritchard and others [2021] EWHC 1580 (Ch)       it was held that the testator did not have testamentary capacity, despite the golden rule being followed. The medical evidence obtained in relation to capacity had been done on the basis that the changes from the testator’s previous Will were minor which did not turn out to be the case. Any assessment should therefore consider the following:

  1. The extent of any changes from the previous Will;
  2. The reasons for those changes; and
  3. Any claims which the testator ought to give effect to (as set out above in the Banks v Goodfellow test).

It is important to consider testamentary capacity throughout the will-making process and our specialist Wills, Probate, Tax & Trusts team is able to assist with this. Not getting it right could lead to a claim being made against the Estate that the Will is not valid due to lack of testamentary capacity. Our Dispute Resolution team is able to advise on making and defending such claims.

For further information or legal advice, please contact or call 0118 951 6800. 

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice. 

Caroline Casagranda

Caroline Casagranda

Partner, Wills, Probate Tax & Trusts

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