Probate actions—lack of testamentary capacity
Produced in partnership with Henrietta Mason of Penningtons Manches Cooper and Jeremy Bristow of Langleys and now internally maintained by LexisPSL Private Client
Probate actions—lack of testamentary capacity

The following Wills & Probate practice note produced in partnership with Henrietta Mason of Penningtons Manches Cooper and Jeremy Bristow of Langleys and now internally maintained by LexisPSL Private Client provides comprehensive and up to date legal information covering:

  • Probate actions—lack of testamentary capacity
  • Analysis of the test for testamentary capacity
  • Overview of the interaction between Banks v Goodfellow and the Mental Capacity Act 2005
  • Burden of proof and presumptions
  • Testamentary capacity in dispute—practical points
  • Gathering evidence
  • Caveat
  • The relationship between lack of testamentary capacity and lack of knowledge and approval
  • The relationship between lack of testamentary capacity and undue influence
  • Issuing proceedings
  • More...

With increased life expectancy comes increased mental illness as people’s bodies outlive their minds. Dementia and other mental illnesses including depression, anxiety, psychosis, confusion and personality disorders may all impact a testator’s ability to make a Will. In addition, drug use, alcoholism and recent bereavement can have a significant impact on capacity.

This area has attracted press and government attention. On 13 July 2017, the Law Commission issued a consultation paper reviewing many issues, including testamentary capacity. The consultation period closed on 10 November 2017. It may be that the outcome of that review leads to new legislation being enacted.

Analysis of the test for testamentary capacity

For the purpose of assessing a deceased individual's testamentary capacity, recent case law maintains that the test under Banks v Goodfellow is still the appropriate test. That test provides that the testator must:

  1. understand the nature of the act of making a Will and its effects

  2. understand the extent of their estate of which they are disposing by Will

  3. understand and appreciate any claims against their estate, and

  4. not suffer from any ‘disorder of the mind’ such as to impair or influence the above factors

The following principles have developed over time:

  1. the testator must be capable of understanding, but does not need to actually understand for the purpose of the test. In Hoff v Atherton, Gibson LJ said: ‘[i]t would

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