Do You Know What You’re Signing? – Testamentary Capacity

It is a long and established rule that when making a will, the testator must have ‘testamentary capacity’. This is where the testator must be able to understand what they are signing in order for the will to be legally-enforceable.

The test for testamentary capacity is set out in the case of Banks v Goodfellow (1870) that required the following:

1. The testator must be able to understand what their will entails and the effect of their will;
2. The testator must be able to understand the extent of the property of which their will deals with;
3. The testator is able to comprehend and appreciate the claims to which he ought to give effect; and
4. A testator must be of a sound mind and must not have a mental disorder that “shall poison his affections, pervert his sense of right, or his will in disposing of his property”.

There is no lack of capacity if a person does not know the extent of their estate, if they are able to understand their actions in creating a will. Therefore, testamentary capacity is a test of understanding concepts rather than knowledge or about the moral value of a potential testator’s decisions.

In situations where a testator may have capacity issues wishes to make a will, then professional advice should be sought from a solicitor when drafting the will. The solicitor should then follow the “golden rule” as laid down in Kenward v Adams [1975]. To summarise, the golden rule requires that a written opinion is sought from a medical practitioner as to the extent of the testator’s capacity. The solicitor should ensure that the medical practitioner is provided with guidance on the legal test for capacity prior to seeing the testator. In addition, the solicitor should maintain a full record of their examination and findings and if need be, further investigate the reasons for changes to an earlier will. This would minimise the risk of the will being contested in the future on the grounds that the testator was incapable at the time of signing the will.

Capacity can be an uncertain area which needs careful handling by experienced solicitors. Failure to do so could lead to expensive consequences, particularly as cases contesting wills are on the up. At Foskett Marr Gadsby & Head LLP, we have the expertise and the experience to guide you through the process of drafting a will. Should you wish to speak further about this with someone, then please contact our Wills and Probate Team.

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