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