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In order to make a valid Will, the testator must satisfy a capacity test on two separate occasions:
when they give instructions for the drafting of the Will or at the time it is written or typed out by the client themselves
at the time of executing the Will
If there is no capacity at either time, the Will may be invalid.
There are two tests that may be applied to determine testamentary capacity—the common law test established by the case of Banks v Goodfellow and the statutory test introduced by the Mental Capacity Act 2005 (MCA 2005).
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