Stephen Laycock & Co Solicitors

Telephone 0113 261 3509 for help and advice

Testamentary Capacity

Back to news

Before a solicitor drafts a person’s will it is important that the solicitor satisfies himself of the mental capacity and understanding of the person to make a will.

The solicitor should ask the person open questions to establish whether, on the balance of probabilities, the person fulfils the test of testamentary capacity. The person should:

  1. Understand the nature of the will-making act and its effects;
  2. Understand the extent of the property of which he is disposing;
  3. Comprehend and appreciate the claims to which he ought to give effect; and
  4. Not suffer from any disorder of the mind or delusion that prevents rational consideration of these matters and produces a disposition which he would not otherwise have made.

This is known as the Banks v Goodfellow test, that for almost 150 years has been accepted by the courts as the standard test of testamentary capacity. This is not a medical test of mental capacity but a legal formulation of the necessary level of understanding that a person must have, otherwise there is a risk that the will that they make will be held to be invalid.

Enquiry form

Related articles

Wills & Probate

Excluding Someone From Your Will

The only way to be sure that your wishes will be carried out when you are no longer alive is to make a will. However, the Inheritance (Provision for Family and Dependants} Act 1975 makes it possible for certain people to challenge the inheritance that they have received after you have died. If the court

More

Wills & Probate

Eligibility to Make a Claim Under the Inheritance Act 1975

The Inheritance (Provision for Family and Dependants) Act 1975 enables certain persons to challenge a will, or the rules of intestacy if the deceased person did not leave a will or a valid will. The types of person who may make a claim in accordance with the 1975 Act are: The spouse or civil partner

More

Wills & Probate

Challenging a Will

The reasons for challenging the validity of a will are: The person making the will did not have testamentary capacity at the time that the will was made; The person making the will did not intend that the document (the will) would be their last will; The person making the will did not understand and

More

Enquiry form

Cookies

This site uses cookies to store information on your computer. Some of these cookies are essential to make our site work and others help us to improve by giving us some insight into how the site is being used. These cookies are set when you submit a form or interact with the site by doing something that goes beyond clicking some simple links. We also use some non-essential cookies to anonymously track visitors or enhance your experience of the site.

You can read more information about why we do this, and what they are used for here.

Accept Decline