Testamentary Capacity and Intention
| Author | Lesley King/Peter Gausden |
| Pages | 21-38 |
3.1 Introduction
If a will is to be admitted to probate, its formal validity must be established. One aspect of this is that it must meet the statutory formalities necessary for its due execution, and this is dealt with in Chapter 4. However, it is also necessary to show the testator had the ability to make a will, and it is this which is covered by this chapter.
To make a will, the testator must not only meet an age requirement (see para 3.2), but must also have the necessary testamentary capacity (see para 3.3) and testamentary intention (see para 3.4).
Testamentary capacity is concerned with the testator’s ability to understand what needs to be considered when engaged in the act of making a will, while testamentary intention is to do with the testator’s knowledge and approval of the terms of his particular will, so that it can be said to represent his genuine wishes. These are two different aspects of will making but are obviously connected since they both concern the mind of the testator.
Questions of capacity and intention are often problematical to deal with and are potentially a breeding ground for contentious probate claims. There are important issues here:
(a) a practitioner instructed to prepare a will for a client must try to ensure the will is in due course recognised as a valid will; this involves a consideration of steps that might be taken to lessen the risk of any challenge to the will’s validity in appropriate cases; and
(b) if instructed after a death, the practitioner must know the requirements for establishing validity in order to advise on the admissibility of a will to probate and the extent to which effect can be given to its provisions.
22 Wills: A Practical Guide
3.2 Testator’s age and physical capacity
Testators must be aged at least 18 at the date when they execute their will. A person who dies a minor under the age of 18 dies intestate (even if married or in a civil partnership).
There is an exception to this rule which relates to ‘privileged wills’. These can be made in certain circumstances by members of the armed forces if on actual military service and also by mariners and seamen ‘at sea’. A minor who enjoys privileged status can make a privileged will. They are called ‘privileged wills’ because they are not subject to the same formalities and can be made in an informal way, even orally (see para 4.7.1 where privileged wills are considered further).
Subject to being an adult, there are no other physical qualifications to making a will and no one is disqualified just because he may be in prison or bankrupt. Nor does it matter that testators lack the physical ability to write or read their own will (see para 4.3.3 as regards the execution arrangements if making a will for such an individual).
3.3 Testator’s mental capacity
3.3.1 Banks v Goodfellow test
A testator’s mental capacity to make a will is not necessarily the same as his capacity to make other important decisions. The traditional test applied by the courts in dealing with capacity issues for wills (testamentary capacity) is that in Banks v Goodfellow [1870] LR 5 QB 549.
The basic Banks v Goodfellow test requires the testator to understand three things:
(a) the nature of the act and its effects: in other words testators must be able to appreciate they are making a will which disposes of their property when they die and until then the property remains theirs;
(b) the extent of the testator’s property: testators do not have to know the exact value of everything they own but must be able to appreciate the general extent of their wealth;
(c) the claims to which the testator ought to have regard: the testator must be able to remember those around him who, morally speaking, might have a claim on his property. Many capacity cases are litigated on this aspect of the rule, where the allegation is that the testator was unaware of his immediate family when making the will.
A further requirement of Banks v Goodfellow is the testator must not have been suffering from any delusion which affected the terms of his will. In
Kostic v Chaplin [2007] EWHC 2298 (Ch), the court found the testator lacked capacity because he was suffering from a delusion his son and other members of his family were implicated in an international conspiracy in which he (the testator) was the victim. The testator had left his substantial estate to a political party.
So too, in Re Ritchie [2009] EWHC 709 (Ch), the deceased had made a will leaving her £2.5 million estate to charity disinheriting her four children. She was a difficult woman with some elements of obsessive compulsive disorder. The deceased had told her solicitor that her sons were stealing from her, that one son was violent to her, and that her daughters never came to see her or gave her help. These allegations were strenuously denied by the children. The judge found the mother’s beliefs were delusions and, pronouncing against the will, accepted the deceased would not have disinherited her children if she had not suffered from these delusions.
Of course, a testator might have a delusion which has no effect on his will. If a man who has a wife and two children makes a will in which they are the only beneficiaries but at the time he is in poor mental health and is deluded into thinking he is manager of the England football team, he still passes the Banks v Goodfellow test. If in the same circumstances, the testator’s will gives a legacy of £10,000 to the first England player to score a goal after his death, his delusion might be held to have affected his testamentary capacity but only to the extent of the legacy. The case of In the Estate of Bohrmann [1938] 1 All ER 271 shows the court can omit from probate part of a will affected by a delusion while allowing the rest of the will to stand. So, the legacy to the goal scorer fails, but the rest of the will takes effect.
In Key v Key [2010] EWHC 408 (Ch), a will was executed by a testator within a few days of his wife’s death, having been married for 65 years. In his judgment, Briggs J said:
Without in any way detracting from the continuing authority of Banks v Goodfellow, it must be recognised that psychiatric medicine has come a long way since 1870 in recognising an ever widening range of circumstances now regarded as sufficient at least to give rise to a risk of mental disorder, sufficient to deprive a patient of the power of rational decision making, quite distinctly from old age and infirmity. The mental shock of witnessing an injury to a loved one is an example recognised by the law, and the affective disorder which may be caused by bereavement is an example recognised by psychiatrists. The symptomatic effect of bereavement as capable of being almost identical to that associated with severe depression. Accordingly, although neither I nor counsel has found any reported case dealing with the effect of bereavement on testamentary capacity, the Banks v Goodfellow test must be applied so as to accommodate this, among other factors capable of impairing testamentary capacity, in a way in which, perhaps, the court would have found difficult to recognise in the l9th century.
24 Wills: A Practical Guide
Generally, testamentary capacity must have existed at the date of execution. However, under the rule in Parker v Felgate [1883] 8 PD 171, confirmed by the Court of Appeal in Perrins v Holland and others [2010] EWCA Civ 840, it is sufficient to show:
(a) the testator had the required capacity at the date they gave instructions to prepare their will;
(b) the will was prepared in accordance with those instructions;
(c) at the time of execution, the testator was able to (and did) understand they were signing a will for which they had given instructions. It does not matter the testator could not then remember their instructions or could not have understood the will if it was read over to them.
The rule in Parker v Felgate was applied in Clancy v Clancy [2003] EWHC 1885 (Ch) where the testatrix had capacity at the time of giving instructions, but probably did not at the time of execution as she was in hospital and heavily sedated.
3.3.2 Mental Capacity Act 2005
The Mental Capacity Act 2005 (MCA 2005) came into force on 1 October 2007. It deals with the determination of mental capacity generally and is not specifically aimed at wills.
Section 1(2) of the MCA 2005 says a person is assumed to have capacity unless it is established he lacks capacity, and section 2(3) provides lack of capacity cannot be established just by reference to a person’s age, condition or aspect of behaviour which might lead others to make unjustified assumptions about his capacity.
Section 2(1) of the MCA 2005 gives a little more guidance on the meaning of lack of capacity by saying a person lacks capacity ‘in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’.
Section 3(1) of the MCA 2005 then goes on to say:
a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
This makes it clear that capacity must be...
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