Testamentary capacity is the legal term used to describe a person’s ability to make a will. If an individual does not have testamentary capacity when giving instructions for, or executing (that is, signing), a will, the will is invalid. In such circumstances, the estate may pass under an earlier will, or in accordance with the rules of intestacy if no earlier will exists.

Solicitors or other professionals involved in preparing a will should always consider whether the testator (the person making the will) has the required testamentary capacity. The legal test for testamentary capacity derives from the historic case of Banks v Goodfellow (1870). This test applies to all individuals making a will, regardless of age or state of health.

To have testamentary capacity, a testator must be able to:

• Understand the nature and effect of making a will;
• Have a general understanding of the size of their estate;
• Be aware of the people they might reasonably be expected to provide for, such as a spouse or children; and
• Not be suffering from a disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in making a will.

Where a testator suffers from a disorder of the mind, such as dementia, this does not automatically mean they lack testamentary capacity. The key issue is whether the disorder affects the testator’s ability to meet the requirements of the Banks v Goodfellow test.

A lack of testamentary capacity is frequently raised in will disputes, often alongside other grounds for challenge, including a lack of knowledge and approval of the contents of the will or undue influence.

It is also important to consider whether the will complies with the formal requirements of the Wills Act 1837. Only individuals aged 18 or over can make a will, unless they have ‘privileged’ status, such as those serving in the armed forces. A will must be in writing and signed by the testator and two witnesses in a prescribed manner. If these requirements are not met, there may be concerns that the will was not validly executed.

We advise individuals who are disputing the validity of a will, as well as those seeking to defend a will that is being challenged. As specialists, we handle these matters with experience and sensitivity, recognising that such disputes can be emotional and stressful. We will advise you on how best to proceed in a cost effective way.

Please do not hesitate to contact us if you would like to discuss your concerns or require advice about a will challenge.