Capacity to make or revoke a Will
Capacity to make or revoke a Will

The following Private Client guidance note provides comprehensive and up to date legal information covering:

  • Capacity to make or revoke a Will
  • The common law test for capacity
  • The statutory test for capacity
  • Applicability of the statutory and common law tests
  • Reducing the risk of a challenge to a Will on the grounds of capacity
  • Capacity to revoke a Will

In order to make a valid Will, the testator must satisfy a capacity test on two separate occasions:

  1. when they give instructions for the drafting of the Will or at the time it is written or typed out by the client themselves

  2. at the time of executing the Will

If there is no capacity at either time, the Will may be invalid. The problem can be that in between the time of instructions and the execution of the Will capacity diminishes or disappears. The capacity required at the time of execution can be less than that required at the giving of instructions but in such circumstances the testator must still recall the instructions and that the Will that is being executed complies with those instructions.Singellos v Singellos [2010] EWHC 2353 (Ch), [2010] All ER (D) 130 (Sep)Parker v Felgate (1883) 8 P.D. 171

A difficulty that the practitioner will come across with elderly clients is that the instructions may come from a third party. There is nothing inherently wrong with this but the greatest caution needs to be exercised and the principles referred to in Parker v Felgate cannot be applied without sufficient investigation. Not only does case law reflect this but the Solicitors Regulation Authority (SRA) has made the warnings clear in both its Code of Conduct (IB(1.25)) and Handbook 2011. If there is any hint of suspicion, the court will not hesitate in ruling that the Will is invalid.Battan Singh v Amirchand [1948] 1 All ER 152SRA Code of ConductVersion 21 of the SRA Handbook

There are two tests that may be applied to determine testamentary capacity—the common law test