Validity of will - testamentary capacity

Question 1

Banks v Goodfellow sets out the common law test for testamentary capacity - a testator must…

Answer 1

• understand the nature of the act and its effects
• appreciate the extent of the property of which they’re disposing
• understand and appreciate the moral claims to which they ought to give effect; and have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of property by will

Question 2

What is meant by testamentary capacity?

Answer 2

A testator must be mentally capable of making a will, referred to as testamentary capacity

Question 3

‘nature of the act’

Answer 3

A testator must understand that they’re signing a document that takes effect on death & disposes of their property

A testator should be able to understand the broad effects of the will but isn’t required to understand every detail

Question 4

‘extent of property’

Answer 4

A testator should have a general recollection of what they own & appreciate the approx value of their estate & relative value of its assets

Question 5

Is a testator required to recall every item or know the price of each?

Answer 5

No - the test is of general understanding rather than perfect memory

Question 6

‘moral claims’

Answer 6

When deciding who to benefit and to what extent the testator should be able to appreciate anyone to whom they owe a moral responsibility

Question 7

In Banks v Goodfellow it was thought most testators would make provision for those ‘nearest to them in kindred and who in life have been the objects of their affection’ - is there a requirement for the testator to leave these people anything?

Answer 7

No

Question 8

Does a testator suffering from insane delusions, affecting their judgement generally or in relation to specific dispositions in the will lack testamentary capacity?

Answer 8

Yes

Question 9

If a testator is suffering from an insane delusion, and this delusion is unconnected with and has no effect on the terms of the will - can they still have testamentary capacity?

Answer 9

Yes

Question 10

At which time must the testator have testamentary capacity?

Answer 10

At the time the will is executed

Question 11

Is there an exception to the timing requirement of having testamentary capacity at the time the will is executed?

Answer 11

Yes - established by Parker v Felgate

Question 12

What was the exception set out in Parker v Felgate?

Answer 12

Where a testator who lacks testamentary capacity at the time of the execution can still make a valid will provided they:
- had testamentary capacity at the time they gave instructions for the preparation of the will
- the will was prepared in accordance with those instructions
- at the time of execution the testator understood they were signing a will for which they had previously given instructions

Question 13

When may this exception apply?

Answer 13

Where a testators testamentary capacity fluctuates overtime (eg illness) or an unexpected event occurs between giving instructions and executing the will which means a person no longer satisfies the test

Question 14

Is it possible for a testators capacity to fluctuate overtime?

Answer 14

Yes - may be due to the nature of a particular illness or the testators circumstances

Question 15

Can a testator gave intermittent capacity?

Answer 15

Yes - for example someone with dementia may have lucid days on which it would be possible to satisfy the testamentary capacity and other days not

Question 16

Is it possible for a testator to temporarily lack capacity?

Answer 16

Yes - for example as a consequence of a particular life event
- Key v Key testators wife died a week before he made his will and testator was found to lack capacity due to the effect of grief on his mental state

Question 17

Should the effect of depressions & other mental health conditions which may affect the decision making capabilities of a testator be taken into account when assessing their testamentary capacity?

Answer 17

Yes

Question 18

What is the golden rule?

Answer 18

• Kenward v Adams
• when taking instructions for a will from a client who is elderly or seriously ill a medical practitioner should be instructed to make an assessment of the testators capacity & a contemporaneous record of the assessment and conclusion should be made

Question 19

Is the golden rule a legal obligation?

Answer 19

No but it’s considered best practice

Question 20

Does following the golden rule confirm the testator definitely had testamentary capacity?

Answer 20

No - the purpose of the rule is to reduce the likelihood of later disputes
(complying with the rule may involve an awkward conversation with a client but this isn’t an excuse to avoid the issue)

Question 21

Will the practical implications involved eg finding a medical practitioner willing to carry out the assessment have been acknowledged (Warton v Bancroft) and a failure to comply automatically demonstrate poor practice?

Answer 21

No

Question 22

Who does the BOP of capacity lie with?

Answer 22

The propounder of the will (person seeking to admit the will to probate - usually the executor)
- however, capacity is presumed if the will on the face of it appears rational and has been duly executed

Question 23

What must anyone who wishes to challenge the validity of the will on the grounds of lack of capacity do?

Answer 23

They must provide evidence sufficient to raise doubt

Question 24

If evidence is provided, the presumption is rebutted, who does the BOP revert to?

Answer 24

To the propounder of the will to demonstrate the testator satisfied the Banks v Goodfellow test

Question 25

Is the threshold to satisfy the test in Banks v Goodfellow high or low?

Answer 25

Low - a person may lack the ability to manage their own affairs and require help with day-to-day activities and still have testamentary capacity to make a will

Question 26

Which Act introduced the general statutory test of a persons capacity to make decisions?

Answer 26

Mental Capacity Act 2005 - the statutory test was intended to tie in with the common law test for testamentary capacity in Banks v Goodfellow rather than replace it

Question 27

Does the statutory test override or modify the specific common law test?

Answer 27

No - the rule in Banks v Goodfellow and subsequent case law remains correct

Question 28

If an application of the two tests produce a different outcome - would the common law test prevail or the statutory test?

Answer 28

Common law prevails

Question 29

If a client lacks testamentary capacity - should a solicitor accept their instructions for the preparation of a will?

Answer 29

No - they cannot make a valid will

Question 30

Is it possible for the court to authorise the execution of a will on behalf of an adult who lacks capacity to make one for themselves?

Answer 30

Yes (s18(1) MCA) - the court must be persuaded there are grounds to diverge from the existing testamentary position and it's in the persons best interests to do so - this could be because the person has never made a will and the intestacy rules would otherwise apply, or because a change in circumstance means it's likely the testator would have reviewed his current position

Question 31

What is required to make a valid will?

Answer 31

- testator must have testamentary capacity - they must know and approve of the contents of the will - must comply with s9 WA

Question 32

Banks v Goodfellow - testator will have testamentary capacity if they..

Answer 32

1) understand the nature of the act 2) appreciate the extent of their property 3) are aware of moral claims against their estate 4) testamentary capacity must be present at execution (unless the rule in Parker v Felgate applies) 5) testamentary capacity is presumed where the will is rational and has been duly executed