By Mark Willey, Terence Willey & Co.

Testamentary capacity is the legal term used to describe a person’s mental capability to make or alter a valid Will.

Just because somebody knows what day of the week it is, or who the Prime Minister is (although we could all be forgiven for losing track recently) does not mean that they have testamentary capacity.

Whether somebody has testamentary capacity can be a complex question which, when called into question, has been the subject of much case law.

Banks vs Goodfellow

The case of Banks v Goodfellow states that a testator (the person who makes the Will) has capacity where they:

Understand the nature of the Will and its effect

Have some understanding of the extent of the property of which they are disposing under the Will

Are aware of the persons for whom they would usually be expected to provide and:

Are free from any delusion of the mind that would affect their dispositions to those people

Although Banks v Goodfellow is a case from 1870, pre the Mental Capacity Act (MCA) 2005, the more recent appeal case of Clitheroe v Bond [2021] upheld the Banks v Goodfellow test and found that it has not been superseded by the MCA 2005.

The Golden Rule

In the case of Kenward v Adams [1975] Lord Templeman highlighted the importance of solicitors considering a testator’s mental capacity when preparing a Will and stated:

“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule that should always be observed…the making of a Will by such a testator ought to be witnessed or approved by a medical practitioner…”

The “Golden Rule”, although not a legal rule, is considered best practice and a relevant consideration in the circumstances where a testator’s capacity is likely to be contested.

Ironically Lord Templeman’s Will made in 2008 (when he was aged 88 and suffering from mild dementia and memory loss) was subject to a challenge in 2014 by his son and daughter-in-law arguing (among other factors) that his own failure to suggest that he be medically examined in accordance with his own Golden Rule demonstrated that his own mental functions were impaired.

There are many other considerations when making a Will of which testamentary capacity is just one, but one that should be at the forefront of the Will drafter’s mind, who should have a good knowledge of the legal principles as established by the case law.