Testamentary capacity in England and Wales

Where a will is rational, professionally drawn, seemingly regular in form and is made by a person whose capacity is not in doubt, there is a presumption that the will is valid. This presumption can be rebutted by a challenger to the will showing that there is a real doubt about capacity. At this point the burden of proving capacity moves to the propounder of the will to then show that there was testamentary capacity at the time the will was executed.^[7][8]

The current test comes from the decision in Banks v Goodfellow (1870).^[9] This case concerned the validity of the will of John Banks. In modern terms he would most likely be described as a paranoid schizophrenic. He suffered from delusions that he was being persecuted by devils (they were sometimes visible to him) and also by a deceased local grocer. His will was challenged on the basis that he was insane and therefore unable to make a will.^[10][11] The will was found to be valid after trial by jury, before Brett J, at Cumberland Spring Assizes in 1869. On appeal, this judgment was confirmed unanimously by a panel of four appeal judges in Queen's Bench. The will was found to be valid, not influenced by his delusions, and deemed rational, being in favour of his only close relative (who also lived with him). In his judgment, Cockburn CJ set out a test of the capacity to make a valid will, which is still applied in many Anglophone jurisdictions today. It is now considered as being composed of four distinct elements: (1) understanding the nature of the act of making a will and its effect, (2) understanding the extent of the property that is to be disposed of, (3) understanding the claims of family or friendship to which ought to be given effect^[12] and as a separate element,^[13] (4) that no mental disorder or delusion shall influence his will in way that would not have occurred otherwise.^[12] This remains the test today, notwithstanding the Mental Capacity Act 2005.^[14]

In addition, in the original wording, [1], [2] and [3] are all approached as not requiring actual understanding, but instead being capable of understanding.^[15] As this is a common law test created by judges, it is capable of being modified by judges, as they see fit in the light of modern circumstances. Modern psychiatric knowledge has allowed the test to be developed by having a further element added and that is for the testator to be capable of exercising his decision-making powers.^[16]

This test is focussed on the ability of the particular individual and his particular estate. The outcome is always unique to the particular facts. Where the circumstances and assets of a testator are simple or straightforward the level of capacity required will be lower than that for the testator with complex circumstances and assets.^[17][18] Additionally, this test is expressly designed for the capability of a person to make a will. It is not, therefore, a test that has an application to any other transactions, save one – the capacity to make substantial lifetime gifts. The leading English decision in this area is Re Beaney (deceased).^[19][20]

The test in Banks v Goodfellow has proved to be long lasting as it was not a definition in medical terms, but a plain English definition of what a person should be capable of understanding in order to make a will. The test is still applied by a court. A medical opinion, while being potentially valuable evidence, is not determinative of capacity unless accepted as such by the court.^[21] The evidence of the will draftsman has considerable value to the court,^[22] if he has carried out his work to an acceptable standard.^[23] The will draftsman is required to have knowledge of the legal test of capacity and what its implications are, in order to record his relevant observations of the testator and form an opinion of his client's capacity. This, coupled with much greater prominence of negligence claims against will draftsmen,^[24] means that a careful understanding of what the draftsman should be doing becomes vital.