Testamentary capacity

Testamentary capacity is the ability of a person (testator) to make a will. When someone is confused because of a condition such as dementia, they may not be able to make sound judgements in regards to their will, and may even be coerced into bequeathing people money or property that they would not have done had they been mentally competent. Conversely they may unintentionally disinherit people who would normally be beneficiaries (Sharp v Adam)¹.

The legal test of testamentary capacity does not derive from the Mental Capacity Act 2005 but from the historic case of Banks v Goodfellow². The test is still used today and requires that the testator :

i) understands the nature of making a will and its effects

ii) understands the extent of the estate

iii) understands the potential claims of others - these are people connected to the testator - the testator has to comprehend their reasoning for leaving a greater share in the estate to some than to others with a claim

iv) does not have a disorder of the mind that could have affected making the will.

The Golden Rule

In the case of Kenward v Adams³ it was suggested by the judge (Templeman) that when an elderly person or an unwell person creates a will, the will should be witnessed or approved by a medical practitioner. A report of testamentary capacity reduces the chances of a successful legal challenge later on and ensures that a person’s wishes are fulfilled after their death.

Whilst the Golden Rule is not a legal requirement, the person preparing the will has a duty to ensure that the testator has capacity.⁴

1. [2006] All ER (D) 227

2. (1870) LR 5 QB 549

3. [1975] CLY 3591

4. Key v Key [2010] WTLR 1699