13 June 2023

Broadly speaking, under English law everyone has the right to leave their estate to whoever they choose which is known as the right to ‘testamentary freedom’.

The Court guards that right jealously and will seek to uphold a testator’s wishes. That is the starting point in cases involving disputed Wills.

Sometimes though, it is possible to challenge a Will. That can be done in a number of different ways. One way is to argue that the testator did not have the cognitive ability to validly make their Will.

The above begs the question: How limited do a person’s faculties have to be for them to be legally incapable of validly making a Will?

The answer was set down by the Court over a century ago in the case of Banks v Goodfellow.

In Banks v Goodfellow, the Court held that for a person to have testamentary capacity they must:

  1. Understand that they are making a Will and the effect it will have, i.e. that they know they are making a Will and that it will dispose of their property once they have died.
  2. Know what property they own (one does not have to know to the last penny the value of one’s estate, a broad-brush appreciation is enough).
  3. Be able to appreciate who ought (in an everyday, moral sense) to benefit from their estate, e.g., if the testator has a surviving spouse or children, he/she must be capable of recognising that the spouse and children should benefit before, or rather than, say the No. 10 cat.
  4. Not be suffering from a medical condition which impairs their judgement to the extent that they make the ‘wrong’ decision about who to benefit by their Will, e.g., if a testator suffers from clinical paranoia or psychosis and consequently believes that their loving family is out to get them, causing the testator to choose to leave everything to the No. 10 cat, then the Will is invalid.

There are some very simple steps testators can take to improve the chances of their Will being upheld. Two of the best (which should be used in conjunction) are: to instruct an experienced Private Client solicitor or legal executive to draw up the Will (that carries evidential weight with the Court); and to have their GP assess their capacity to make a Will and for the GP to record their findings in writing.

Provided the GP’s assessment is positive, the Court will likely uphold the Will. However, where there is doubt, there is the risk of the Court finding the Will to be invalid.

For assistance in making a Will, please contact Naomi Dyer

For assistance in challenging a Will, please contact Peter Livingstone 01935 846235