Learning Outcomes
After reading this article, you will be able to explain how illness impacts the legal capacity to make a valid will or codicil. You will be able to apply the Banks v Goodfellow test, distinguish the requirements of the Mental Capacity Act 2005, and identify practical steps solicitors should take when illness may affect capacity. You will also be able to answer SQE1-style questions on this topic.
SQE1 Syllabus
For SQE1, you are required to understand the legal requirements for testamentary capacity and how illness can affect the validity of wills and codicils. In your revision, focus on:
- the Banks v Goodfellow test for testamentary capacity and its application in cases of illness
- the relevance and limits of the Mental Capacity Act 2005 in will-making
- the concept of lucid intervals and their effect on capacity
- the practical and ethical responsibilities of solicitors when illness may impair capacity (including the Golden Rule)
- how to advise on and evidence capacity in the context of fluctuating or deteriorating conditions
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What are the three core elements of the Banks v Goodfellow test for testamentary capacity?
- Does a diagnosis of dementia automatically mean a person cannot make a valid will?
- What is a lucid interval, and how does it affect the validity of a will made during one?
- What practical steps should a solicitor take if a client’s illness may affect their capacity to make a will?
Introduction
Testamentary capacity is a fundamental requirement for the validity of any will or codicil. Illness—whether physical, psychiatric, or cognitive—can affect a person’s ability to understand and approve the contents of a will. For SQE1, you must be able to apply the legal tests for capacity, understand how illness interacts with these tests, and know the practical steps solicitors should take to protect the validity of a will where illness is present.
The Legal Test for Testamentary Capacity
The starting point for assessing capacity to make a will is the common law test from Banks v Goodfellow.
Key Term: testamentary capacity The legal ability to understand and make a valid will, assessed at the time the will is executed.
The Banks v Goodfellow Test
The Banks v Goodfellow test requires that, at the time of making the will, the testator must:
- Understand the nature of making a will and its effects.
- Know the extent of the property being disposed of.
- Comprehend and appreciate the claims to which they ought to give effect (i.e., who might expect to benefit).
Key Term: Banks v Goodfellow test The common law test for capacity to make a will, requiring understanding of the act, the property, and the possible beneficiaries.
A person may have testamentary capacity even if they are unwell, elderly, or have a diagnosed mental disorder, provided these elements are satisfied.
Effects of Illness on Capacity
Illness can affect testamentary capacity in several ways. The law distinguishes between different types and stages of illness.
Cognitive Impairment and Dementia
A diagnosis of dementia or cognitive decline does not automatically remove capacity. The key question is whether the testator meets the Banks v Goodfellow test at the time of execution. Early-stage dementia may allow for valid will-making, especially for simple dispositions. As the illness progresses, capacity may be lost.
Key Term: lucid interval A temporary period of mental clarity during which a person who otherwise lacks capacity regains sufficient understanding to make a valid will.
Psychiatric Illness and Fluctuating Conditions
Mental health conditions such as schizophrenia or bipolar disorder may cause capacity to fluctuate. A will made during a lucid interval—when the testator temporarily regains understanding—can be valid.
Physical Illness and Medication
Physical illness, pain, or medication (such as strong painkillers) can affect alertness and understanding. The test remains whether the testator can meet the Banks v Goodfellow criteria at the time of signing.
Delusions
A person suffering from delusions may still have capacity if the delusions do not affect their understanding of the will or the claims of potential beneficiaries.
The Mental Capacity Act 2005
The Mental Capacity Act 2005 (MCA 2005) sets out a statutory test for capacity. However, for wills, the common law Banks v Goodfellow test remains the standard. The MCA 2005 may influence the approach of the courts, but it does not replace the common law test for testamentary capacity.
Key Term: Mental Capacity Act 2005 Legislation providing a statutory test for capacity in England and Wales, but not replacing the common law test for wills.
Practical Safeguards: The Golden Rule
Where illness or age raises any doubt about capacity, solicitors must take extra precautions.
Key Term: Golden Rule A best practice guideline requiring solicitors to obtain a contemporaneous medical opinion on capacity when a client is elderly or unwell.
Solicitors should:
- Arrange for a medical practitioner (ideally with relevant specialist knowledge) to assess and confirm capacity.
- Ensure the testator understands the will and its effects.
- Keep detailed attendance notes of all meetings and observations.
- If possible, have the medical practitioner witness the will.
Following the Golden Rule does not guarantee validity, but it provides strong evidence if the will is challenged.
Worked Example 1.1
A solicitor is instructed by a client with early-stage Alzheimer’s disease to make a new will. The client can explain who their children are, what assets they own, and what the will does. The solicitor arranges for the client’s GP to assess capacity and witness the will.
Answer: The will is likely to be valid. The client meets the Banks v Goodfellow test, and the solicitor has followed the Golden Rule to evidence capacity.
Worked Example 1.2
A client with schizophrenia has periods of confusion but is stable and lucid during a meeting with their solicitor. The client gives clear instructions and understands the will’s contents.
Answer: If the will is executed during a lucid interval, and the client meets the Banks v Goodfellow test at that time, the will is valid.
Worked Example 1.3
A terminally ill patient on strong pain medication wishes to make a will. The solicitor finds the client drowsy and unable to explain the effect of the will.
Answer: The client likely lacks testamentary capacity at that time. The solicitor should not proceed until the client is alert and able to meet the Banks v Goodfellow test.
Exam Warning
If a will is challenged on grounds of capacity, the burden of proof may shift. If the will appears rational and is properly executed, capacity is presumed. If evidence raises a real doubt, the person propounding the will must prove capacity.
Revision Tip
When illness may affect capacity, always advise contemporaneous medical evidence and keep detailed notes. This is essential for both validity and professional conduct.
Solicitor’s Duties and Ethical Considerations
Solicitors must balance respect for the client’s autonomy with the need to protect vulnerable clients from undue influence or exploitation. They should:
- Take instructions in private, away from potential beneficiaries.
- Be alert to signs of coercion or manipulation.
- Decline to act if not satisfied that the client has capacity or is acting freely.
Key Point Checklist
This article has covered the following key knowledge points:
- The Banks v Goodfellow test is the legal standard for testamentary capacity.
- Illness does not automatically remove capacity; assessment is fact-specific.
- Lucid intervals can allow a valid will even in fluctuating conditions.
- The Mental Capacity Act 2005 does not replace the common law test for wills.
- The Golden Rule is best practice when illness or age raises doubt about capacity.
- Solicitors should obtain medical evidence and keep detailed records.
- Undue influence and lack of capacity are separate grounds for challenging a will.
Key Terms and Concepts
- testamentary capacity
- Banks v Goodfellow test
- lucid interval
- Mental Capacity Act 2005
- Golden Rule
