Skip to content
Home » Testamentary Capacity: Making a Will

Testamentary Capacity: Making a Will

Writing a Will: Fountain pen atop hand-written note, alongside some purple flowers.

Testamentary Capacity refers to an individual’s legal mental capacity to create or amend their Will.  In cases where there is either a reasonable belief that the individual may lack capacity to complete their Will, or that there may be challenges to the Will in future, it is best practice to request an Independent Mental Capacity Assessment to safeguard the decision.

Testamentary capacity in case law

The founding case law for Testamentary Capacity is Banks v Goodfellow (1870) which establishes that the person making a Will (the ‘testator’) must:

  1. Understand the nature and consequences of forming a Will.
  2. Understand the extent of their property and assets.
  3. Be able to consider who may have a ‘moral claim to their estate’.
  4. Not be cognitively impaired by a disorder of the mind that impacts their decision making.

This has been confirmed by the case of Clitheroe v Bond [2021] EWHC 1102 (Ch), as being the main test for capacity for this specific decision, rather than being superseded by the Mental Capacity Act’s two-stage test. This ensures that there is a consistent minimum threshold – though it has been argued that the Mental Capacity Act provides a far more stringent test.

If in doubt, seek expert help

If there is any doubt as to an individual’s capacity to make a Will (their ‘Testamentary Capacity’), then we strongly advise you seek the support of an Independent Mental Capacity Assessor. This will ensure that the person making or amending the Will is thoroughly assessed in accordance with best practice guidelines, and that the outcome is thoroughly documented by a qualified professional.

Indeed, by effectively applying the MCA’s two-stage test, a ‘gold standard’ Mental Capacity Assessment would naturally cover the requirements of Banks and Goodfellow (1870). This is because the assessor would ensure all relevant information is understood and retained before exploring the individual’s ability to weigh-up the decision and those options not taken, while considering the risks and benefits of each. The professional would then provide a detailed report, recognising both tests, while giving a clear rationale and summary of the individual’s capacity or incapacity to make or amend their Will.

For more information on Testamentary Capacity, and how we can support you or your client in this area, please do get in touch.

Leave a Reply