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Will drafting – that’s easy right?

January 10, 2020


One of the many challenges we legal practitioners specialising in Will drafting face, is establishing the testamentary capacity, (otherwise known as mental capacity), of our clients.  While in some cases, the presence or absence of sufficient mental capacity may be clear, in others, there may be some uncertainty.


The common law test for assessing capacity to make a Will is set out in Banks v Goodfellow (1870). A person making a Will must understand:

  • the nature and effect of entering into a will;

  • the extent of the property of which he is disposing; and

  • claims to which he ought to give regard

In addition, the person cannot have “a disorder of the mind that perverts his sense of right or prevents the exercise of his natural faculties in disposing of his property by Will”.


The importance of us verifying the mental capacity of our clients should not be underestimated. By undertaking this process in a clear and concise manner, claims against estates after a death can be avoided.


In practical terms, we legal practitioners can assess testamentary capacity in several ways in addition to the requirements as set out in Banks V Goodfellow. Particularly if our client is elderly or infirm at the time of Will writing, we may consider taking the following steps:

  • Ensuring communication with our client is suitable to their level of understanding

  • Obtaining a medical opinion confirming the mental capacity of our client

  • Asking a medical practitioner to witness the Will

  • In the absence of a medical opinion, explaining to our client that this may heighten the possibility of their Will being challenged successfully on the grounds of lack of testamentary capacity, and thereafter ensuring they wish to proceed

  • Making clear notes of the reasons for our client making the Will in the way they have

  • Asking questions of our client to gain a better understanding of their family background, and making detailed notes of the same

If we decide that a medical opinion is needed, we should remember that it is important to request the assistance of a health practitioner with the skills to assess capacity.  A client’s GP may not always be the best person to make the assessment and often a specialist is needed.


Given the rise in Will disputes, it is essential we make no assumptions regarding the capacity of our clients.  We also need to remember that proving testamentary capacity is more than a tick-box exercise; rather it is one that requires us to take the time to get to know our clients.


All of this does, of course, come at a cost. Spending more time with clients and speaking to medical practitioners where necessary, means that the client's bill is going to cost more. However, there can be no substitute for a properly drafted Will backed up by a full file of notes to support the capacity of the client, and we should not shy away from explaining to our clients that whilst their will may cost more to make, the extra costs should save on a dispute, costing both time and money, after their deaths  

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