Testamentary capacity is the ability of someone (a “testator”) to give instructions for, and then execute, a Will. The test for testamentary capacity is determined by the court, and follows principles laid down in case law. This is different from the test for capacity for making decisions generally, which falls under the Mental Capacity Act 2005.
The Test
The test for testamentary capacity was set in the case of Banks v Goodfellow [1870], which held that a testator:
- should be able to understand what a Will is, and what will happen with their property once they die under the terms of a Will;
- should be able to understand what they own (property, bank accounts, shares etc), and the approximate value;
- should understand who their close relatives and dependents are and how the Will affects them; and
- has no “disorder of the mind” such as a mental illness or delusions that distort their ability to make rational decisions about their Will.
There has been extensive case law, especially over recent years, determining whether a testator has testamentary capacity. The courts have provided best practice principles to assist testators in ensuring their Will reflects their intentions, and minimises the likelihood of the Will being successfully challenged. One such principle is the Golden Rule. The Golden Rule is used in circumstances where a testator is either aged, or has suffered from an illness, which may call into question their testamentary capacity. In these instances, a Will ought to be approved, or witnessed by a medical practitioner who is satisfied themselves “of the capacity and understanding of the testator”. In practical terms, these days it means getting a specialist report from an expert assessor.
More recently, the opinion of an experienced solicitor taking instructions and drafting the Will, has been given significant weight by the court in determining testamentary capacity, providing they have a clear written record of their instructions and the circumstances in which they were given.
It is initially for the person, or persons, seeking to rely on the Will that needs to evidence testamentary capacity. However, this is usually achieved by a Will being validly executed (signed and properly witnessed), and appears rational. In those circumstances, the burden then shifts to the person challenging the validity of the Will to raise a real doubt about capacity. If a real doubt is raised, the evidential burden shifts back to the one seeking to rely on it.
I have instructed an experienced solicitor, and have observed the Golden Rule – is my Will protected?
In short, not necessarily. In the recent case of Bond v Webster [2024], despite the testator instructing a solicitor to draft his Will and Codicil, and attending several meetings with her, as well as observing the Golden Rule, the Will was held to be invalid for lack of testamentary capacity.
First, the solicitor’s conduct was questioned as she did not seem to discuss the value of the testator’s assets or obtain a copy of his previous Will which would have showed the variations between the old Will and the new one. There were also elements of secrecy between the children of the testator who would be receiving an increased share of his estate (and also involved in the making of the new Will), and those children whose share was to be reduced. The judge also questioned her impartiality in favour of the side of the family who were to substantially benefit from the Will she was preparing.
Further, the doctor’s letter to the solicitor after his assessment stated that he considered the testator to be “compus mentis [sic] and retained a very good memory”. However, it was later discovered that the doctor had not heard of the Banks v Goodfellow test (as set out above), and so could not have determined whether the testator had testamentary capacity. Therefore, very little weight was placed on the doctor’s evidence. This is certainly a situation that commonly arises where the Will writer has relied on a brief assessment by the family GP who often does not carry out a proper assessment.
Experts instructed during the litigation agreed that due to the testator’s brain tumour, he would have suffered from fluctuating capacity, and experienced good and bad days. As the judge placed very little weight on the evidence of the solicitor and doctor, they had to rely on their assessment based on the quality of the witness evidence and where the legal burden fell. It was held that the claimants had not proved, on the balance of probabilities, that the testator had the capacity to sign the Will and Codicil.
It is therefore important that an independent solicitor is properly instructed to advise you, and draft your Will. Even if they are satisfied about the testator’s capacity, they may still proceed to get a capacity assessment from an appropriate expert, even if only to minimise the risk of a successful challenge based on lack of capacity. Indeed, even if the testator is held to lack capacity to make a Will, it may be possible to make an application to the Court of Protection for a Statutory Will.
If you are concerned about the validity of a Will, or wish to make a Will when you have concerns about a future challenge, please contact one of our advisors for help.