Understanding Testamentary Capacity
Testamentary capacity refers to a person’s legal and mental ability to make or amend a valid will.
Why is it important?
As estate planners and legal professionals, we must ensure clients understand what they are doing, why they are doing it, and who will be affected; otherwise, the will may later be challenged or declared invalid.
Banks v Goodfellow (1870)
This leading case set out four key criteria. A person has capacity to make a will if they can:
- Understand the nature of making a will and its effects.
- Understand the extent of the property that they own.
- Understand who might reasonably expect to benefit from their estate, and take that into account when deciding how to distribute it.
- Not be affected by any mental disorder or delusion that influences their decisions.
When to be cautious
You must be alert to signs that capacity could be in question. Common triggers include:
- Advanced age (especially 75+).
- Diagnosis or symptoms of dementia, Alzheimer's, or cognitive decline.
- Brain injury, stroke, or neurological illness.
- Confused or inconsistent instructions.
- Reliance on others to answer questions.
- Unusual or irrational exclusions of close family.
- Pressure from others present (potential undue influence).
Always keep detailed attendance notes when dealing with elderly or vulnerable clients, record client responses in their own words, and note any signs of confusion, hesitation, or third-party interference.