Lack of Testamentary Capacity


Testamentary capacity is the legal term used to describe someone’s ability to make a will. If a person does not have testamentary capacity when giving instructions for or executing (i.e. signing) a will it is invalid. This means the individual’s estate may pass in accordance with an earlier will, or in accordance with the intestacy rules if there is no earlier will.

Solicitors or others preparing a will should always consider whether the testator (the person making the will) has the necessary testamentary capacity. The test for testamentary capacity comes from a historic court case called Banks v Goodfellow, from 1870. It applies to anyone making a will, regardless of their age or health.

To have testamentary capacity a testator must be able to:

  • Understand the nature of making a will and its effect;
  • Have an idea of the size of their estate;
  • Be aware of the people for whom they may be expected to provide (such as their spouse or children); and
  • Not be suffering from any disorder of the mind which perverts their sense of right or prevents the exercise of their natural faculties in making a will.

Where a testator suffers from a disorder of the mind, such as dementia, it does not automatically mean they do not have testamentary capacity. It is only if the disorder of the mind has an effect on the testator’s understanding of the elements of the test under Banks v Goodfellow.

A lack of testamentary capacity is commonly raised in will disputes, along with other grounds for challenge such as a lack of knowledge and approval of the contents of the will or undue influence.

It is also important to consider whether the will complies with the requirements of the Wills Act 1837. Only those over the age of 18 can make a will unless they have ‘privileged’ status such as those serving in the military. A will must be in writing and be signed by the Testator and two witnesses in a particular way. Otherwise, there may also be concerns about whether the will was validly executed.

We advise people disputing the validity of a will as well as those defending a will that is being challenged. As specialists we approach these matters with experience and sensitivity as we understand that such disputes can be emotional and stressful. We will advise you about how to approach matters in the most cost-effective manner.

Please do not hesitate to contact us  if you would like to discuss your concerns or require advice about a will challenge.