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Contentious Probate Series Part 1 - Lack of Testamentary Capacity

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6th September 2023

Testamentary capacity refers to the legal ability of an individual to establish a valid will. For a will to be considered valid, the person creating it (known as the testator) must possess the mental capacity to comprehend the nature and consequences of their actions. This includes understanding the value and nature of their assets, the typical beneficiaries of their estate, and the legal implications of their will.

The legal concept of testamentary capacity was established in the case of Banks v Goodfellow (1870). This case determined that for a will to be considered valid, the testator must be capable of understanding the impact and extent of creating a will, as well as the amount of property being distributed. The court considers various factors such as age, mental illness, comprehension of the will's contents, and the testator's ability to grasp the nature and extent of their property. The burden of proof lies with the person presenting the will to demonstrate that the testator had the necessary testamentary capacity at the time the will was made. If a will is contested based on testamentary capacity, the court will examine evidence and testimony to determine whether the testator possessed the required mental capacity when the will was created.

The threshold for testamentary capacity is relatively low. However, it is essential to note that merely understanding these fundamental concepts does not automatically imply the capacity to create a will. For instance, if the testator is suffering from a mental illness or disorder that impairs their ability to make rational decisions, they may lack the capacity to establish a valid will. It is important to highlight that testamentary capacity is evaluated at the time the will's instructions were given, not when it is executed. Additionally, a testator may possess the capacity to create a will but exhibit irrational decision-making due to a mental illness or disorder. In such cases, their will may still be considered valid. If a will is challenged and the court determines that the testator lacked testamentary capacity, the will may be deemed invalid. This means that the testator's assets will be distributed according to any earlier valid will or the laws of intestacy, which dictate the distribution of property when someone dies without a valid will.

It is crucial to seek legal advice when creating a will to ensure that the testator possesses the capacity to establish a valid will. This is particularly important when dealing with elderly or infirm individuals or those with a history of mental illness or disorder. Furthermore, if there are doubts about the validity of a will, seeking legal advice is essential.

If you have any enquiries regarding a disputed probate claim, please contact Noel McNicholas at 01926 887700 or