Testamentary capacity

Testamentary capacity is the mental capacity required to make a valid will. The test in England and Wales remains the common law test from Banks v Goodfellow (1870), which survives alongside the Mental Capacity Act 2005.

The four limbs#

The testator must:

1. Understand the nature of the act and its effects — that they are making a will, and that it decides what happens to their property when they die.
2. Understand the extent of the property being disposed of — broadly, not to the penny.
3. Comprehend and appreciate the claims to which they ought to give effect — who might reasonably expect to benefit, including people they choose to exclude.
4. Have no disorder of mind that perverts their sense of right or prevents the exercise of their natural faculties.

Capacity is assessed at the time the will is made, and it is decision-specific. Someone may lack capacity to manage their finances and still have capacity to make a straightforward will.

The golden rule#

Where a testator is elderly or seriously ill, the long-standing guidance is to have the will witnessed or approved by a medical practitioner who satisfies themselves as to capacity and records their examination.

It is guidance rather than law, and failing to follow it does not invalidate a will. But following it makes a later challenge far harder to sustain, and it is the single most useful protective step available.

What to record#

Your own assessment against each limb, in your attendance note. Who was present — and note that a beneficiary sitting in on the appointment is a gift to anyone later alleging undue influence. Any unusual provision and the testator's stated reason for it. Any medical evidence obtained.

The attendance note is what defends the will years later, when you may not remember the appointment. Contemporaneous, specific and honest beats detailed and reconstructed.

Related#

Attestation clause · What is a will writer? · Training