Testamentary Capacity – Understanding Mental Capacity for Making a Will

What Is Testamentary Capacity?

Testamentary capacity refers to a person’s legal and mental ability to make a valid will. If someone lacks the necessary capacity when making their will, it can be challenged and declared invalid in court.

The UK legal test for testamentary capacity is set out in the case of Banks v Goodfellow (1870) and requires that the person making the will:

1. Understands that they are making a will and its legal consequences.
2. Knows the extent of their estate (property, savings, assets).
3. Can identify potential beneficiaries (such as family and dependents).
4. Is free from any mental illness or delusion that affects their decision-making.

When Might Testamentary Capacity Be Questioned?

Challenges to testamentary capacity often arise when the testator (the person making the will) was:

• Elderly or suffering from dementia.
• Experiencing mental illness (such as schizophrenia or depression).
• Under the influence of another person (undue influence).
• Making sudden, unexpected changes to their will.

How to Prove Testamentary Capacity?

If a will’s validity is questioned, the person who made it (or their legal representatives) may need to prove capacity at the time it was signed. This can be done by:

• Medical evidence – A doctor’s report or mental capacity assessment.
• Solicitor’s records – A lawyer’s notes confirming the person understood their actions.
• Witness testimony – Statements from those present when the will was made.

Can a Will Be Challenged on the Grounds of Mental Capacity?

Yes, a will can be contested in court if there is evidence that the testator lacked testamentary capacity. If successful, the will may be declared invalid, and a previous will (or intestacy rules) will apply.

How Fraser Bond Can Help

At Fraser Bond, we provide expert advice on will disputes, estate planning, and probate matters. If you need assistance proving testamentary capacity or defending a will from challenges, our specialists can guide you through the legal process.

Need Legal Advice on Wills & Testamentary Capacity? Contact Fraser Bond Today

Ensure your will is legally valid and protected from disputes. Speak to Fraser Bond for expert guidance on estate planning and probate issues.