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What is Testamentary Capacity?

Testamentary Capacity is the term used to describe a person’s legal and mental ability to make or alter a valid will. If the testator or testatrix (the person making the will) lacks testamentary capacity at the time that the will is executed, the will is deemed invalid and won’t pass through probate – leading to a potential claim.

But how do you assess a person’s testamentary capacity? All solicitors and will-drafters must adhere to the following three sets of guidelines:

The Mental Capacity Act, 2005, which assumes capacity unless proven otherwise. It also states that the testator should be able to “reasonably foresee the consequences of disinheriting someone”.

The Golden Rule, which relates to older or seriously ill testators. When in any doubt, the will-drafter must advise that a medical professional confirm testamentary capacity and act as one of the witnesses.

The Banks Goodfellow Test. This is used by courts as an over-arching benchmark and requires that testators
• Understand the nature of making a will and its effects
• Have a reasonable understanding of the value of their estate
• Comprehend and appreciate the claims of those who might expect to benefit from the will
• Do not have a mental illness (this can include “insane delusion” resulting from drink/drugs, or major grief at losing a loved one) that influences them to make bequests they would not otherwise have made.

However, testamentary capacity can sometimes be tricky to judge, as these cases show:

Key v Key, 2010
The elderly testator was a farmer who had just lost his wife of 65 years. They had four children – two boys and two girls. The boys had worked closely with their father on the farm for their whole lives, and the girls had moved away. But when his daughters discovered that their father’s 2001 will left his estate to his wife and then to his sons, they persuaded him to draw up a new one, leaving the bulk of the estate to them.
The sons challenged the will, arguing that their father had suffered severely from bereavement and so lacked testamentary capacity. The court agreed, overturning the will and criticising the solicitor for failing to observe the Golden Rule – in not asking that a medical professional be present during the will’s execution.

Wharton v Bancroft, 2011.
This testator was bedridden and dying at home when he signed his will in the presence of a solicitor, who had been called to the house as a matter of urgency. The will left his substantial estate to his partner of 32 years, and did not include his children. On his death the children challenged the will, claiming that the partner had unduly influenced their father and that the solicitor hadn’t applied the Golden Rule. But their claim was not upheld – the court ruled that the solicitor had made a valid assessment of testamentary capacity in what were urgent circumstances.

Sharp v Adam, 2006
The testator was a dying man, with evidence of brain deterioration due to multiple sclerosis. However, he was able to communicate effectively by blinking and using a spelling board, and his solicitor and family doctor were present when the will was signed. This will excluded his daughters – despite the fact that there were no problems in his relationship with them, nor any undue influence on him from the named beneficiaries.
The Court of Appeal found that the testator’s “cognitive ability” was satisfactory to make the will, but that his “mood” was so affected by the MS that he did not have testamentary capacity at the time of making the will, and so it was declared obsolete.

Make a valid, watertight will
All showing that testamentary capacity can be a bit of a minefield! But one thing’s for sure – the best way to avoid problems further down the line is to make a valid, watertight will with the legal expertise and resources – including from the medical profession, if necessary – offered by experienced, professional will-drafters.
During our first meeting with you, we ask many questions so that we can fully understand your family relationships (emotional and legal), in order to draw up wills, trusts and guardianship clauses for children that work best for everyone.

Contact us
TLB Planning specialises in legal affairs, insurances and funeral plans to take you and your loved ones “Through Life and Beyond”.

Our Legal Services staff have extensive experience in the field and are all STEP (Society of Trust and Estate Practitioners) qualified Will Drafters, so you can be confident that we provide the highest professional standards.

Whether you’re in the north of the country - Newcastle, Sunderland and Durham, south – Kent or Devon, or in Wales, if you would like to talk to us about your plans for wills, Guardianship Clauses, Lasting Powers of Attorney, trusts and other matters, do get in touch on 01792 342 673 or email us at