Best Practice Notes On Capacity Brought To You By Fortis Law

In the year 2017-2018 probate disputes increased by 30%

Whilst those involved in the production of Wills cannot prevent claims after the death of the testator, steps should be taken, at the time of the initial instruction, to limit the likelihood of a successful claim being made. Claims of negligence must also be protected against.

One of the most common form of claims made post-death is that the testator did not have the required level of testamentary capacity to make and approve the Will. A successful claim will result in one of two outcomes;

  1. If a previous, valid, Will has been made, it will prevail and distribute the estate
  2. If no previous Will has been made, the estate will pass according to the rules of intestacy

It, therefore, follows that if a potential claimant is neither a beneficiary under the terms of the previous valid Will nor a beneficiary at intestacy, no claim can be made.

Assuming that a claim can proceed the decision of the courts will be strongly influenced by the satisfaction, or otherwise, of the test for testamentary mental capacity as stated in the case of Banks v Goodfellow (1870) LR 5 QB 549. All practitioners should be familiar with the case as well as the practical implications. In practice it is important that the Will preparer is able to answer the following;

  • How did the testator satisfy you that he understood the nature of the act (‘the nature of his business’) (of making a Will)?
  • How did the testator evidence that he understood that making a Will enables him to pass assets to beneficiaries upon death and that he will be appointing someone within the document to ensure that this happens?
  • How did the testator satisfy you that he understood the extent of his property? (‘recollection of his property’) Thus an enquiry into the value of assets ought to be taken. A general awareness rather than a detailed understanding of everything owned is likely to suffice – Waters v Waters (1848)
  • How did the testator evidence an understanding of the potential claims on him (‘the persons who are the objects of his bounty’?

And finally, in respect to the latter (above), cases such as Key v Key (2010) show that it is necessary to consider whether the testator has a condition, such as depression and mental health disorders, that could interfere with the decision making power (as opposed to merely being able to comprehend the relevant matters).

Any answer to such an enquiry made after death, by a potential claimant, should include contemporaneous attendance notes whenever possible.

Further consideration ought to be given to the ‘Golden Rule’ as stated in Kenward v Adams (1975) Times 29-Nov-1975, [1975] CLY 3591  wherever the testator is either over the age of 80 or ‘seriously ill’. We will look at the Golden Rule in more detail in next weeks article.

If you would like to attend one of our Partner training sessions then this is a great taster of the content we provide. dates can be found at

This article was submitted to be published by Fortis Law as part of their advertising agreement with Today’s Wills and Probate. The views expressed in this article are those of the submitter and not those of Today’s Wills and Probate.