Validity of wills and codicils - Testamentary capacity

Learning Outcomes

After reading this article, you will be able to explain the legal test for testamentary capacity, identify when and how capacity is assessed for wills and codicils, distinguish the Banks v Goodfellow criteria from the Mental Capacity Act 2005, and apply these principles to SQE1-style scenarios. You will also understand the practical steps solicitors should take when capacity is in doubt and recognise common pitfalls in exam questions on this topic.

SQE1 Syllabus

For SQE1, you are required to understand the requirements for a valid will and codicil, with a focus on testamentary capacity. In your revision, pay particular attention to:

• the common law test for testamentary capacity (Banks v Goodfellow)
• the timing of capacity and the effect of fluctuating mental states
• the distinction between testamentary capacity and general mental capacity under the Mental Capacity Act 2005
• the practical steps solicitors should take when capacity is in doubt
• how capacity issues may affect the validity of wills and codicils in exam scenarios

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.

1. What are the three main elements of the Banks v Goodfellow test for testamentary capacity?
2. At what point in time must a testator have capacity to make a valid will?
3. How does the Mental Capacity Act 2005 interact with the common law test for testamentary capacity?
4. True or false: A person diagnosed with dementia can never make a valid will.

Introduction

Testamentary capacity is a core requirement for the validity of any will or codicil. For a will to be admitted to probate, the testator must have had the mental ability to understand what they were doing and the consequences of their decisions. This article explains the legal test for capacity, when capacity must be present, and the practical steps to take when capacity is in doubt.

The Legal Test for Testamentary Capacity

The leading authority for testamentary capacity is the common law case of Banks v Goodfellow (1870). This test remains the standard for assessing whether a person is capable of making a valid will or codicil.

Key Term: testamentary capacity The mental ability required for a person to make a valid will or codicil. The testator must understand the nature of making a will, the extent of their property, and the claims of potential beneficiaries.

The Banks v Goodfellow Criteria

To have testamentary capacity, the testator must:

1. Understand the nature of making a will and its effects.
2. Know the extent of the property they are disposing of.
3. Be able to comprehend and appreciate the claims of those who might expect to benefit from the estate.
4. Not be affected by any mental disorder or delusion that influences the will's provisions.

Key Term: Banks v Goodfellow test The common law criteria requiring a testator to understand the act of making a will, the extent of their property, and the claims of potential beneficiaries, free from any disorder of the mind affecting their decisions.

Worked Example 1.1

A testator, aged 82, wishes to make a will. She has mild memory loss but can explain that she is making a will, lists her house and savings, and names her children and grandchildren, stating why she wants to leave her estate in a particular way. She sometimes believes her late husband is still alive but does not mention him in her will.

Answer: The testator likely has testamentary capacity. She understands the act, her property, and the relevant people. Her mistaken belief about her husband does not affect the will's provisions, so it does not invalidate capacity.

Timing of Capacity

Capacity must be present at the time the will or codicil is executed. If the testator's mental state fluctuates, capacity must be assessed at the moment of signing. If the testator had capacity when giving instructions but lost it before execution, the will may still be valid if, at signing, the testator understands they are executing a will prepared according to their earlier instructions.

Key Term: material time The relevant moment for assessing testamentary capacity—usually the time the will or codicil is executed.

Worked Example 1.2

A solicitor takes instructions from a client with early dementia. The client is lucid and gives clear instructions. Two weeks later, at the will signing, the client is confused and cannot recall the instructions or the purpose of the document.

Answer: The will is not valid. Capacity must exist at the time of execution. If the testator cannot understand they are signing a will, the Banks v Goodfellow test is not satisfied.

The Mental Capacity Act 2005 and Testamentary Capacity

The Mental Capacity Act 2005 (MCA 2005) sets out a statutory test for mental capacity in general decision-making. However, for wills and codicils, the common law Banks v Goodfellow test remains the standard. The MCA 2005 may be relevant in some cases, but it does not replace the common law test for testamentary capacity.

Key Term: Mental Capacity Act 2005 Legislation providing a statutory framework for assessing capacity in general decisions, but does not override the common law test for testamentary capacity.

Exam Warning

For SQE1, do not confuse the Banks v Goodfellow test with the statutory test under the Mental Capacity Act 2005. The exam will expect you to apply the common law test to questions on wills and codicils.

Delusions and Disorders of the Mind

A testator may have a mental disorder or delusion, but this only affects capacity if it influences the will's provisions. If the delusion does not affect the distribution of the estate, capacity may still be present.

Key Term: delusion (testamentary context) A fixed false belief. Only relevant to capacity if it affects the testator's decisions about the will.

Practical Steps When Capacity Is in Doubt

Solicitors should take extra care when a testator is elderly, ill, or has a history of mental impairment. The "golden rule" is to obtain a medical opinion on capacity and, if possible, have a doctor witness the will. Detailed attendance notes should be kept.

Key Term: golden rule (wills) The best practice that, where capacity is in doubt, a medical practitioner should confirm the testator's capacity and ideally witness the will.

Revision Tip

If the exam scenario mentions an elderly or unwell testator, consider whether the solicitor should have followed the golden rule and obtained medical evidence of capacity.

Capacity and Codicils

The same test for capacity applies to codicils as to wills. If a testator lacks capacity at the time of executing a codicil, the codicil is invalid, even if the original will was valid.

Capacity and Undue Influence

Testamentary capacity and undue influence are separate issues. A testator may have capacity but still be subject to undue influence. For a will to be valid, the testator must act freely and voluntarily.

Summary Table: Testamentary Capacity vs. Mental Capacity Act 2005

Key Point Checklist

This article has covered the following key knowledge points:

• The Banks v Goodfellow test is the standard for testamentary capacity in wills and codicils.
• Capacity must be present at the time of execution, or the will is invalid.
• The Mental Capacity Act 2005 does not replace the common law test for wills.
• Delusions only affect capacity if they influence the will's provisions.
• Solicitors should obtain medical evidence of capacity where there is doubt (the golden rule).
• The same test applies to codicils as to wills.

Key Terms and Concepts

• testamentary capacity
• Banks v Goodfellow test
• material time
• Mental Capacity Act 2005
• delusion (testamentary context)
• golden rule (wills)