Assessing testamentary capacity (part I)

One issue that comes up relatively regularly is the ability of a lawyer to determine whether a client has the required capacity to make a will.

Arguably, the leading case in relation to testamentary capacity dates back many years and is the decision in Banks v Goodfellow [1870] 5 LR QB 549. If you would like a full copy of the court decision please email me directly.

As set out in the decision, and as subsequently adopted and expanded on in many related cases, there are a number of key tests that a lawyer or witness to a will should consider.

The first six of these considerations are set out below (next week's post will summarise another six tests):

1. there is no reason to consider that the person has a diagnosed condition that may affect their decision-making capacity (such as an intellectual or psychiatric disability, acquired brain injury or dementia); 
2. the person does not seem unduly forgetful of recent events; 
3. the person does not repeat themselves unduly; 
4. the person seems able to grasp new ideas; 
5. the person does not seem unduly anxious about having to make decisions; and 
6. the person does not seem unduly irritable or upset about their ability to manage tasks. 

Until next week.