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  • Ian Barton

Testamentary Capacity

Anyone making a Will must have testamentary capacity at the time of giving instructions. Whilst the Mental Capacity Act 2005 introduced a general test for mental capacity, the test when making a Will has traditionally been that established in the case of Banks v Goodfellow (1870) according to which the testator must have “a sound and disposing mind and memory” which requires that the testator must be aware of the nature of the acts and its effects, must understand the extent of the property of which he is disposing and the claims to which he should give effect and that no disorder of the mind shall poison his affections and bring about a disposition of his property that he would not have made in the absence of the disorder. Put simply, the testator must be aware that the document he is intending to sign is a Will, he must have a broad understanding of the property he owns and must be able to bring to mind family members and other people who he might ordinarily be expected to benefit and not be suffering from a delusion that negatively impacts upon his decision making.

Mental capacity has to be established in each case on its own facts. The great majority of people are entirely rational and lucid and this is immediately apparent to the solicitor when taking instructions. Testators can be very old and in the early stages of dementia but, provided they satisfy the Banks v Goodfellow test, they can sign a Will. It is established law that a Will when presented for probate will be admitted for such if it is clear and rational on the face of it and in the absence of a challenge to its veracity by the subsequent submission of cogent evidence.

There are instances where the testator’s mental capacity is open to doubt. People in the early stages of dementia often forget recent events on account of a failing memory but are otherwise mentally alert and are fully aware of past events enabling them to sign a Will. Insane delusions on account of paranoia, senility or other conditions may render a person temporarily or permanently incapable of signing a Will. An insane delusion was defined in the case of Dew v Clark (1826) as a belief in the existence of something that no rational person would believe and which cannot be removed from the testator’s mind by reasoned argument. However, a testator with an insane delusion can make a Will provided that the delusion concerns something wholly unrelated to the intended Will and which has no bearing on his decision making.

In the case of Sharp v Adams (2006) the Court of Appeal considered the Will of a testator who had left his estate to his employees to the exclusion of his two daughters. He was suffering from advanced multiple sclerosis at the time and was subjected to substantial medical intervention which was likely to damage his mental faculties. The court decided that the testator could not possibly have made this decision in the absence of illness and medication and the test of mental capacity was not satisfied. In the later case of Kostic v Chaplin (2007) the testator was convinced that there was an international conspiracy of dark forces against him and that this conspiracy included his family, friends and professional advisers. As a result, he left his substantial estate to a political party. The court concluded that this was a decision brought on by an insane delusion and one that the testator in his right mind could not possible have made.

When presented with a testator showing signs of paranoia or other negative mental condition the solicitor instructed must consider the instructions taken with regard to what a testator in these circumstances would ordinarily be expected to give. If the instructions are on balance questionable or if there is any reason for doubt, the solicitor may be best advised to decline to act.

If you or your loved ones would like to find out more about drafting a Will and you have concerns about capacity, please contact Ian at 01992 422 128. Ian is an excellent Consultant Solicitor in our Private Client department who may be able to offer you advice.


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