Requirements for establishing capacity when making a Will

In the case of James v James and others [2018] EWHC 43 (Ch), the claimant son challenged the validity of his late father’s Will (created in 2010), on the basis that his father lacked capacity to make the Will at the time it was signed and also on a separate alternative ground. The claimant’s father had an established farming and haulage business and owned several pieces of land. The son was a partner in the family business and when the partnership was dissolved in 2009; his father gave him the haulage business in addition to the property that the son was living in.

The case law to establish capacity is laid down in Banks v Goodfellow (1870) LR 5 QV 549 and denotes that the test for capacity for a testator to make a valid Will is as follows:-

1. “Understand the nature of making the Will and its effects

2. Understand the extent of the property of which he is disposing

3. Be able to comprehend and appreciate the claims to which he ought to give effect

4. Have no disorder of the mind that shall poison his affections, pervert his sense of right or prevent the sense of right, or prevent the exercise of his natural faculties- that no insane delusion shall influence his Will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

The High Court noted that previous case law had seemed to suggest that the test in the Mental Capacity Act 2005 had superseded the test above. However, the High Court held that the test in Banks v Goodfellow was still the correct and the only test for testamentary capacity, when considering whether a deceased testator had the capacity to make a Will. This has therefore provided some much needed clarity as to which test is to be used.

For any further information please contact our Wills and Probate team today on 01702 338338 / 01277 500123 / 0208 049 5888 / [email protected]

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