Home » Mental Capacity

Mental Capacity

For a Will to be valid, the person who made the Will must have had testamentary capacity at the time they signed it. If they did not have testamentary capacity, the Will is not valid, and the person’s estate will be distributed in accordance with their last valid Will. If there is not an earlier valid Will, their estate will be distributed in accordance with the Intestacy Rules. This is one of the most common reasons that we are instructed by clients to challenge a Will.

What is ‘testamentary capacity’?

There is a legal test which is applied to determine whether a person had testamentary capacity. It comes from the case of Banks v Goodfellow [1870] LR 5 QB 549 and says that the following are required for a person to have testamentary capacity:

  1. The testator must have understood the nature and the effect of making their Will;
  2. They must have understood the extent and value of the assets they are giving away in their Will;
  3. They must have understood and considered any claims against the Will which could be brought by anyone who might be disappointed by the Will;
  4. They must not have been suffering from any ‘disorder of the mind’ which caused them to make a gift which they would not have made had they been of sound mind.

If the person passed this test at the time their Will was written, they are said to have testamentary capacity, and their Will is valid.

How is testamentary capacity proved?

It is the responsibility of the executor to prove that the Will is valid, which includes showing that the testator had capacity. Usually, as long as the Will looks rational, it will be presumed that the testator had capacity, so the executor does not need to do anything more to prove this.

Where there is doubt over the testator’s capacity a person may want to bring a challenge to the Will. When doubt exists, the executor would then have to prove that the Banks v Goodfellow test was passed. The types of things which might cast doubt over whether the testator had capacity include:

  • Close relatives being excluded from the Will;
  • Gifts, particularly large gifts, to people or organisations which the testator had little or no connection to;
  • The testator being elderly when they made the Will;
  • The testator suffering from a cognitive health condition such as dementia or Alzheimer’s when they made the Will;

The person challenging the Will should get hold of the file of the firm who wrote the Will, the testator’s medical records, and possibly an expert medical report, as these will all help to create a better picture of the testator’s capacity at the time the Will was made. The executor, who should remain neutral in a challenge to the Will, should authorise the release of these documents to the person challenging the Will if they are asked to do so.

What about the Mental Capacity Act?

The Mental Capacity Act 2005 sets out a list of factors which are relevant to determining whether a person has capacity to make a decision, but it does not apply to testamentary capacity and does not replace the Banks v Goodfellow test. However, if medical records show that a testator had failed a test for capacity under the Mental Capacity Act around the same time they made their Will, this could be useful evidence in support of a challenge to the Will.

My relative had dementia when their Will was made. Is their Will invalid?

This is a common question, and the answer is ‘not necessarily’. A condition such as dementia is often relied upon as evidence supporting a challenge to a Will on the grounds of a lack of testamentary capacity and is likely to influence a Court, but a diagnosis of a cognitive condition on its own is not enough to succeed on a claim. This is because the person’s condition might not have been affecting their testamentary capacity at the time they made the Will. Medical professionals refer to these as ‘lucid intervals’, and a Will made by a person with a cognitive condition during a lucid interval may well be valid.

Proving that someone lacked capacity to make a Will is a complex and often difficult process, so it is essential to take legal advice at an early stage.

If you have any concerns, please contact a member of our property disputes team in confidence here or on 02920 829 100 for a free initial call to see how they can help.


To speak to one of our experts today, please contact us on 02920 829 100 or by using our Contact Us form for a free initial chat to see how we can help.

Contact Our Team
Mike Raymond
Trainee Solicitor
View Profile
Nick O’Sullivan
Partner
View Profile
Patrick Murphy
Senior Associate
View Profile
Rhodri Lewis
Partner
View Profile

I have worked with Darwin Gray for a number of years and the level of service, professionalism and timely response is second to none. I would highly recommend Darwin Gray to any business.”

Becs Beslee, Dice FM Ltd

Darwin Gray have provided us with a first-class service for many years now. They really take the time to understand our business and develop relationships which results in advice and support that is contextualised and effective.”

Rebecca Cooper, ACT Training

We have worked with Darwin Gray for several years and have always found their services and advice to be first class.”

Karen Gale, Stepping Stones Group

An extremely professional and sincere company who make time for your queries and understand the need to break down certain facts and information to ensure everything is understood perfectly. I would highly recommend the company to anyone looking for any type of legal advice”

Gwawr Booth, Portal Training Ltd

PSS has worked with Darwin Gray for many years. We have always received an excellent service. Prompt and professional advice and support.”

Ledia Shabani, Property Support Services UK Ltd

We have used several departments within DG recently and we have been very pleased with an effective, efficient and down to earth service. Very happy thus far and I expect that we will continue to use DG.”

Guto Bebb, Farmers’ Union of Wales

Darwin Gray offer us truly superb services. Very professional, quick and services available bilingually which is very important to us, highly recommend.”

Iwan Hywel, Mentrau Iaith Cymru

My “go to” in urgent and time sensitive cases for direction, support and advice. The team are quick to respond to calls or emails for advice and support on all matters. Always explain complex matters in a way a lay person can easily understand.”

Margot Adams, Guarding UK Ltd

Darwin Gray have acted for myself and my company over a number of years and at all times we have been treated with a professional manner yet maintain a common-sense approach at all levels. We couldn’t recommend them more highly.”

Simon Baston, Loft Co

We have been clients of Darwin Gray for many years; they’ve always dealt with all of our legal matters with such professionalism. They work around us, even during awkward hours, and we feel confident we can always rely on them.”

Louise Williams, ACT Training

Darwin Gray has been acting for Siltbuster for more than ten years. We would have no hesitation in recommending Darwin Gray to other organisations small or large.”

Richard D Coulton, Siltbuster Ltd

From the very first conversation, I had no doubt that Darwin Gray should be the firm to receive our instructions on this matter. I would have no hesitation in recommending Darwin Gray.”

Sandra Warr, Tomos TV

We regularly instruct Darwin Gray. Their service in dealing with our transactional matters and disputes is always professional, prompt and efficient.”

John Poppleton, Absolute Property Management Solutions Ltd

Darwin Gray guided me through a long and extended process that would have been much more difficult had it not been for their patience and constant support.”

Ifan Lewis

Excellent and efficient service. Great result achieved, highly professional and transparent on pricing. Would recommend.”

David Stevens

Superb legal service provided. Exceeded expectations. They went above and beyond in order to provide the best service possible.”

Huw Pickrell

Very professional and understanding. They were a calming influence in a very troubling situation and they brought it to a very successful conclusion”

Rachel Jones

We have used Darwin Gray and have been seriously impressed. The personal approach is what Darwin Gray are excelling on and is the reason why we will continue to work with them in the future.”

Cadwyn Housing Association