It is important to know that for a will to be valid, the testator, i.e., the person making it must have sufficient mental capacity. “Testamentary capacity” is the legal term used when describing an individual’s legal and mental ability to make or alter a valid will. In the absence of testamentary capacity at the time that the will is executed, the will is deemed invalid.

Is it possible to prove testamentary capacity?

Proving testamentary capacity, particularly in retrospect is challenging. The best way is to counter future claims on the estate is to arrange a contemporaneous testamentary capacity assessment at the time the will is written. A letter of capacity from doctor, or medical professional which is concurrent to the writing of the will can ensure there are not later challenges to the validity of the will.

If this is not possible, an experienced medical professional can review medical notes and offer a retrospective opinion on mental capacity at the time depending on supporting evidence from the period in question.

Arranging a testamentary capacity assessment?

A medical professional can be instructed to perform an assessment and prepare a report detailing the presence or absence of a mental disorder and assessing the key elements of testamentary capacity.

The legal tests for mental capacity to make a will

The test for testamentary capacity was established in the case of Banks v Goodfellow in 1870. It established that a testator must:

• Understand the nature of making a will and its effects;

• Understand the extent of the property of which they are disposing;

• Be able to comprehend and appreciate the claims to which they ought to give effect; and

• Not be suffering from a “disorder of the mind” which impairs or influences the above factors.

The Mental Capacity Act 2005 also introduced an additional statutory test for mental capacity. The Mental Capacity Act test assumes capacity unless proved otherwise. The case law only requires the challenge to raise a 'real doubt', at which point the burden of proof switches to those who claim the testator had capacity. Additionally, the Mental Capacity Act asserts that the testator must be able to understand all the information relevant to the decision. Case law only requires the testator to appreciate the claims to which they ought to give effect in the will, and that the will reflects them.

This caused a debate over which test should apply, with recent case law confirming that, when assessing testamentary capacity, the Banks v Goodfellow test (outlined above) should be followed when assessing capacity to make a will.

If you have any queries about testamentary capacity or wills generally, please get in touch with a member of our Wealth Management team on 01494 521301.