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Testamentary Capacity

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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.

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