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Legal News | 8.02.24

A Testing Subject?

When deciding how your assets should be distributed after you die, it is important to be of “sound mind”; not only to ensure that your estate is passed to those you wish to benefit, but to prevent any disputes arising from your Will being challenged.

Typically, where an individual may be unable to make decisions for themselves, the principles set out in s1 Mental Capacity Act 2005 (MCA 2005) are applied; these provide that:

  • a person must be assumed to have capacity unless established otherwise;
  • individuals should be helped to make their own decisions as far as practicable;
  • a person is not to be treated as unable to make a decision merely because he makes an unwise decision;
  • all decisions and actions must be in the best interests of the person lacking capacity; and
  • all decisions and actions must be the least restrictive of the person’s rights and freedom of action.

However, there are differences between the test of capacity as set out in the MCA 2005 and the common law test used to assess competence to execute a Will. Testamentary capacity refers to the mental ability to execute a valid Will, and the requirements are set out in the case of Banks v Goodfellow (1870). Testators are required to:

  • understand the nature of making a Will and its effects;
  • understand the extent of the property of which they are disposing;
  • be able to comprehend and appreciate the 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 their property by Will.

The test prescribed under the MCA 2005 is considered to be more stringent, but following the judgment in Baker v Hewston (2023), the new methodology of applying the common law (Banks v Goodfellow) test and using the MCA 2005 criteria as a cross-check may be adopted.

Where there is doubt as to whether someone is of sound mind to provide instructions for a Will, consideration should be given as to whether the person in question should have their capacity assessed by a medical professional. A letter of capacity can be provided by a doctor such as a psychiatrist or a GP, or alternatively you can arrange to undergo a professional capacity assessment for a fee.

It is worth noting that according to statistics, people are increasingly likely to make a Will as they get older, and after age 65 there are also statistics to suggest the likelihood of developing dementia doubles every 5 years. Where there is uncertainty surrounding the testator’s capacity at the time the Will was executed, it may be possible for those who feel they haven’t been adequately provided for to challenge the Will in the courts, which may be costly in terms of both time and legal fees.

We at Wansbroughs can guide you through the process of making a Will and can ensure that all the necessary formalities are complied with, thereby reducing the chances of your Will being challenged after your death.


Posted By Our Wills, Tax, Trusts & Probate Team