What you should know about testamentary capacity

What is Testamentary capacity

Testamentary Capacity (also “Mental Capacity or just “Capacity") means whether you know what you are doing when you make your will. If you do: your will is valid. If you don’t have capacity then your will is invalid.

The tests for capacity are legal. A judge will have the final say on whether you have capacity and not a doctor. There are things you can do to protect your wishes and paint the best picture for the courts. Any evidence is valuable if your will is challenged after you die.

Test for Testamentary Capacity

The evidence the courts look for if a Will is challenged is set out in the 19th Century case of Banks v Goodfellow. This historic test has been repeated by the courts in multiple occasions. The judge in Banks v Goodfellow set out the following three main tests:

• Sound mind;
• Sound memory;
• Sound understanding.

There is a fourth limb of the test: “no insane delusion or disorder of the mind".

Capacity Vault asks you questions and records your answers so we can demonstrate your capacity according to these tests. We also ensure that the recordings can be presented to the court in a valid format along with sworn legal statements.

If your will is challenged your executors and beneficiaries will have everything they need to provide the best information to the courts.

Sound mind

This part of the Testamentary Capacity test means that you should know that you are making a Will.

You need to show that you are aware of what you are doing and the effects of signing the will. Your will is a very important document and due weight needs to be given to the act of executing it.

You can give further evidence to the courts by ensuring you follow the Golden Rule when you sign your will.

Sound memory

You have to show that you understand what you own to show sound memory. You don’t need to know down to the penny.

However, a full general understanding is required. If you are not aware of vast portions of what you own e.g. forgetting properties or pensions or other investments, you will fail this element of the test.

Sound understanding

This relates to understanding of your circumstances relating to your family and friendship situation. You should know who may expect to inherit – such as close friends or family.

If you do not remember someone in this category you should be able to explain why you are not leaving a gift to them (or a smaller gift). Reasons can include anything from gifts given during life taken into account through to family fall-outs. It is always a good idea to be clear and honest in your Capacity Vault recording.

Omission could be interpreted as forgetting. If you do not mention someone important or a close relation then it would indicate a lack of understanding.

Testamentary Capacity wills checklist

If there is any chance of a challenge to your will on the grounds of Testamentary Capacity you should:
• Speak to a solicitor when preparing your will;
• Execute your will in accordance with the Golden Rule;
• Make a secure Capacity Vault recording.

If you have any questions about Testamentary Capacity or how to use the service please speak to your medical professional, to your solicitor or contact us.