What Is Testamentary Capacity? Capacity to Make a Will Explained

Katie de Swarte

What is testamentary capacity?

Testamentary capacity is a person’s legal and mental ability to make a valid will. In simple terms, it means the person making the will understands what they are doing, what property they own and who might reasonably expect to benefit from their estate.

Testamentary capacity is one of the key legal requirements for a valid will in England and Wales. If there are doubts about a person’s mental capacity when a will is made, the will may be challenged after their death.

At Osbornes Law, our specialist contesting a will solicitors advise clients on disputes involving mental capacity, dementia, undue influence and other concerns about the validity of a will.

Capacity to make a will explained

To have capacity to make a will, a person must understand the nature and effect of making a will. They must also understand the general extent of their estate and be able to weigh up the claims of the people who might reasonably expect to benefit.

This does not mean a person needs a perfect memory or a detailed knowledge of every asset they own. The question is whether they have enough understanding to make a reasoned decision about how their estate should pass after death.

Concerns about capacity often arise where the will-maker is elderly, living with dementia or experiencing cognitive decline. In these situations, taking legal advice at an early stage can help protect the will and reduce the risk of a later dispute.

The legal test for testamentary capacity

The legal test for testamentary capacity comes from the case of Banks v Goodfellow. In broad terms, the person making the will must:

• understand that they are making a will and what that means
• understand the nature and approximate extent of their property
• understand the claims of the people who might expect to benefit from their estate
• not be affected by a disorder of the mind that influences the gifts made in the will

This remains the leading legal test in disputes about the mental capacity to make a will. Each case will depend on its own facts, including the medical evidence and the circumstances in which the will was prepared.

Example of testamentary capacity

A simple example is an older person who wants to update their will after the death of a spouse. They may still have testamentary capacity if they understand they are making a new will, know the main assets in their estate and can explain why they want certain family members or friends to benefit.

By contrast, if the person cannot understand the effect of the will, cannot recognise the people who would usually expect to inherit or is suffering from delusions that affect their decisions, there may be grounds to argue that they lacked testamentary capacity.

When is testamentary capacity necessary?

In practice, testamentary capacity is usually considered at the time will instructions are given. This is particularly important where someone has fluctuating capacity, which can happen in cases involving dementia or other cognitive conditions.

A person may have the required understanding at one stage of the process and not at another. For that reason, careful drafting, full attendance notes and, where appropriate, medical evidence can be very important.

If there are concerns about mental capacity, solicitors may follow the Golden Rule and consider obtaining an independent medical opinion before the will is signed. This can help protect the will from challenge later on.

Lack of testamentary capacity

A will may be challenged if there is evidence that the person making it lacked the mental capacity required by law. These cases often arise where there was dementia, serious illness, confusion, memory loss or suspicious circumstances surrounding the preparation of the will.

If enough evidence is produced to raise a real doubt about capacity, the burden may shift to the person seeking to rely on the will to prove that the will-maker had the necessary capacity.

These disputes are often fact-sensitive and may involve medical records, solicitor attendance notes and witness evidence.

The burden of proof in testamentary capacity cases

There is usually a presumption that a person making a will had testamentary capacity. However, where there is sufficient evidence of mental impairment or a real doubt about capacity, the burden of proof may shift.

In those circumstances, the person propounding the will may need to prove that the deceased did have the mental capacity required to make a valid will.

This is one reason why proper legal advice and good evidence at the time a will is prepared can be so important.

Can you contest a will due to dementia?

Dementia does not automatically mean that a person lacks testamentary capacity. Some people remain able to make a valid will despite a diagnosis, particularly in the earlier stages of the condition or where their capacity fluctuates.

What matters is whether the person had the required understanding when they gave instructions for the will. Medical records, solicitor attendance notes and witness evidence can all be important in establishing what the person understood at the relevant time.

You can read more in our article on contesting a will due to dementia.

Other reasons a will may be challenged

Lack of testamentary capacity is not the only basis for disputing a will. Other grounds may include undue influence, fraud, forgery, suspicious circumstances or a failure to properly execute the will.

Where there are concerns that someone was pressured into changing a will, it may also be helpful to read our article on fraudulent calumny.

If you are concerned about whether a will is valid, our team can advise on the strength of a potential claim and the evidence needed to support it.

How Osbornes Law can help

Osbornes Law advises clients on all aspects of will disputes, including claims involving testamentary capacity, dementia, suspicious circumstances and the validity of a will.

We can help whether you are concerned about a loved one making or changing a will, you want to protect a will from challenge, or you believe a will should be disputed after someone has died.

Our team also advises on wider wills, probate and disputed estates matters and issues concerning writing valid wills.

To speak to a specialist solicitor, contact our team for clear, practical advice tailored to your circumstances.