There are only a limited number of grounds upon which you can challenge the validity of a Will. The provisions set out in a Will can be “hurtful… ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed” (Hawes v Burgess [2013] EWCA Civ 74) but if a person has testamentary capacity it will be very difficult to overturn the Will.
The Courts are very careful to preserve testamentary freedom – the freedom of a person to leave their Estate as they wish and to whomever they wish.
The legal test that applies is a test set out in the case of Banks v Goodfellow which dates back to 1870. There are four limbs to the test which require that the person making the Will must
The requirements of the Banks v Goodfellow test must all be met – if any one limb of the test is not met, then testamentary capacity will not be made out.
This is not the same as the test in the Mental Capacity Act 2005, but the requirements of that Act do provide a useful cross-check when considering whether a person has the requisite capacity to make a Will. The Mental Capacity Act provides that a person is unable to make a decision for themselves if they are unable to
In 2023 the case of Baker & Anor v Hewston [2023] EWHC 1145 (Ch) commented on the importance of avoiding a situation where a person might be judged to have capacity under one test and to lack capacity under the other.
The Judge in Baker suggested the use of the Mental Capacity Act test as a cross-check to the Banks v Goodfellow test. This gave rise to concern that the use of the two different tests might create uncertainty.
In 2024 the case of Leonard v Leonard [2024] EWHC 321 (Ch) resolved the issue and confirmed that the Banks v Goodfellow test remains the test for testamentary capacity having “stood the test of time”.
The Judgement itself in Leonard provided a helpful and comprehensive explanation of the approach to be taken to each of the four limbs in Banks v Goodfellow including how developments in medicine can be considered against these criteria.
When it comes to capacity issues, expert evidence is sometimes obtained. In Leonard v Leonard it was made clear that whilst an expert’s opinion on capacity – which is often a retrospective opinion from an expert who never met the testator – can be useful, it is just opinion. Ultimately, testamentary capacity is a question of evidence and a matter for a Judge to determine.
Usually it is necessary to obtain copy medical records for the testator – GP and hospital records are useful but there may also be Care Home records, Memory Clinic records or other documents which assist.
Supporting statements from people who knew the testator well and spent time with them around the time the Will was made, as well as evidence from any professional who drafted the Will itself will also be useful.
An expert may be asked to review all of the documents and provide an expert opinion on capacity – this is a retrospective capacity report. If the testator was being treated by a Doctor at the time the Will was made their evidence may also be obtained.
Our specialist Contentious Trusts and Probate Team have a wealth of experience in acting for clients who are both challenging a Will on the grounds of lack of testamentary capacity and those who are defending a claim brought on that basis.
Our Team includes members of the Association of Contentious Trusts and Probate Specialists (ACTAPS) so you can be sure that you are getting the very best advice.
If you are concerned that a Will has been made by someone who lacked testamentary capacity, our team will be happy to talk through your concerns with you and advise on the way in which we can investigate that for you. Please contact our expert team here.
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