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Testamentary Capacity in Making Wills

بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ

The concept of testamentary capacity refers to an individual’s legal and mental ability to create or modify a valid will. To ensure the validity of a will, certain conditions must be met, including compliance with the formalities outlined in Section 9 of the Wills Act 1837. One such condition is the requirement for the testator (the person making the will) to possess testamentary capacity.

The correct legal test for testamentary capacity was established in the landmark case of Banks v Goodfellow during the late 1800s. According to this test, a testator must demonstrate the following abilities:

  1. Understanding the Nature of Making a Will: The testator should comprehend the purpose and effects of creating a will.
  2. Understanding the Extent of Property: The testator must grasp the value and scope of the assets they intend to dispose of through the will.
  3. Appreciating Relevant Claims: The testator should recognize the legitimate claims of potential beneficiaries.
  4. Absence of Mental Disorder: The testator must not suffer from any mental disorder that distorts their judgment or impairs their natural faculties when making decisions about their property.


In the case of Kenward v Adams (1975) Lord Templeman highlighted the importance for solicitors to consider a testator’s mental capacity when preparing a will. Lord Templeman stated that:

“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed…the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding”.

This is now more commonly known as ‘The Golden Rule’.


Impact of the Mental Health Act 2005: The common law test for testamentary capacity, specifically concerning the execution of wills, remains unaffected by the provisions of the Mental Health Act 2005. Initially, there was uncertainty regarding whether the capacity test outlined in the Act applied to will execution. However, the High Court clarified this issue in the case of Clitheroe v Bond [2021]. In the Clitheroe case, the court addressed the validity of two wills made by the deceased’s eldest daughter, who had passed away from cancer. The court confirmed that the Mental Health Act does not alter the established test for testamentary capacity in will-making.

Please note that this summary provides an overview of the key points, and further legal analysis may be necessary for a comprehensive understanding.