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When does a person no longer have capacity to make a Will?

Posted on 18th May 2021 in Probate & Wills

Posted by

Naomi Hoare

Senior Associate & Solicitor
When does a person no longer have capacity to make a Will?

When making a Will, the person making it (the testator) must have the necessary mental capacity in order for the Will to be valid.  A recent High Court case has considered the test to establish when this standard has been met.

The case involved the Will of a lady, Jean, who made a Will leaving her entire estate to her son because she believed her daughter was a spendthrift. After her mother’s death, the daughter challenged this Will and the one made previously to it on the grounds that her mother lacked the necessary testamentary capacity.

In forming her case, the daughter relied on the final part of the enduring test for capacity set out in the 1870 case, Banks v Goodfellow. This case established that for a person to have testamentary capacity he must:

  • understand the nature and effect of the document
  • understand the extent of the property of which he is disposing
  • be able to comprehend and understand the claims to which he ought to give effect
  • be free from any disorder of the mind which affects his sense of right or prevents the exercise of his natural faculties when disposing of his property by Will

On the last point, the daughter claimed that her mother had been suffering from delusions regarding her daughter’s spending habits, as a result of having recently lost another child around that time. The result was that both Wills were overturned and the daughter was awarded half the estate.

However, this decision was then appealed by the son, whose advisers claimed that it was the test set out in the Mental Capacity Act 2005 which should have been applied rather than Banks v Goodfellow. The test under the Mental Capacity Act establishes the principle that a person should be presumed to have mental capacity unless it is established that they lack it. If this became the standard test to be applied to testamentary dispositions then it would make it far harder to prove mental incapacity years after the event.  

As it happens, it looks as though Banks v Goodfellow is set to endure, with an interim judgment rejecting the suggestion that Banks v Goodfellow is not the appropriate test. However, the case is ongoing as the alternative ground for appeal relates to the application of the final principle in Banks v Goodfellow and a determination on this has not been reached. Instead, the case has been adjourned for three months to enable the parties to try and reach agreement.

What this case highlights, though, is the importance of ensuring that you take the correct advice when preparing your Will, particularly if you are likely to have a disappointed potential beneficiary, so that you can best guard against any potential claims against your estate in the future.

How can Tozers help?

For any further help or advice on anything covered in this insight, please contact our dedicated Probate & Wills team who will be happy to help.

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