Probate actions—lack of testamentary capacity


Produced in partnership with Henrietta Mason of Farrer & Co and Jeremy Bristow of Clarion and now maintained internally by Lexis+ UK Private Client
Practice notes

Probate actions—lack of testamentary capacity


Produced in partnership with Henrietta Mason of Farrer & Co and Jeremy Bristow of Clarion and now maintained internally by Lexis+ UK Private Client

Practice notes
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With increased Life expectancy comes increased mental illness as people’s bodies outlive their minds. Dementia and other mental illnesses including Depression, anxiety, psychosis, confusion and personality disorders may all impact a testator’s ability to make a Will. In addition, drug use, alcoholism and recent bereavement can have a significant impact on capacity.

Analysis of the test for Testamentary capacity

For the purpose of assessing a deceased individual's testamentary capacity, recent case law maintains that the test under Banks v Goodfellow is still the appropriate test. That test provides that the testator must:

  1. •

    understand the nature of the act of making a Will and its effects

  2. •

    understand the extent of their estate of which they are disposing by Will

  3. •

    understand and appreciate any claims against their estate, and

  4. •

    not suffer from any ‘disorder of the mind’ such as to impair or influence the above factors

In Leonard v Leonard the High Court set out an authoritative

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Jurisdiction(s):
United Kingdom
Related legal acts:
Key definition:
Probate definition
What does Probate mean?

The process of proving (ie establishing the validity of) a Will by the executor. Once the Will has been proved, the court will issue a grant of representation. The Scottish law equivalent is executry.

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