Testamentary Capacity
Challenges to the validity of Wills on the grounds of mental capacity
A person making or amending a Will must be of sound mind, in other words must have the required mental capacity.
There are several key principles and steps applicable to contesting a Will due to a lack of mental capability, or to use the legal terminology, “testamentary capacity”.
The test according to Banks v Goodfellow
The test applicable to determine testamentary capacity is from the case of Banks v Goodfellow (1870) LR5 WB 549, as follows:
“It is essential to the exercise of such a power that a testator:
- shall understand the nature of the act and its effects;
- shall understand the extent of the property of which he is disposing;
- shall be able to comprehend and appreciate the claims to which he 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 – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
Ultimately, this will be a question of medical evidence and if there is a suggestion that capacity is doubted, we will obtain and then carefully review copies of medical records, social care records and any other relevant files to see whether any capacity issues were recorded by the GP, treating medical consultants and social services.
Many factors can impact testamentary capacity including ill health such as Alzheimer’s or other forms of dementia. It can also be affected by medication.
The Golden Rule
“The Golden Rule” as it is known in law, is not actually a cast-iron rule as such, but is rather more a code of guidance on best practice for solicitors or will writers.
When dealing with the elderly or people with a history of mental capacity issues, it is best practice to ask a medical practitioner to witness the Will or provide a contemporaneous opinion on mental capacity. The solicitor/will writer would normally also discuss the terms of the Will and the reasons for any changes, keep a record of the discussions and make sure to take instructions from their client without any of the beneficiaries present.
However, it is important to note that just because “The Golden Rule” may not have been followed in a particular case, does not automatically mean that the Will is invalid. Careful and informed scrutiny of all the facts, circumstances and evidence will still be necessary.
Consideration must also be given to the general issues that apply to most Will disputes, guidance on which can be found here.