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What Is The Legal Test of Mental Capacity For Doing A Will?

Posted: Monday, 8 May 2017 @ 10:14

The common law standard was laid down in Banks v Goodfellow which is that the testator must do three things:

i) Understand the nature of his act(sound mind) that is he is making a will and its effects?

ii) Understand the extent of his property being disposed of (sound memory) though he/she not need remember every one of his assets

iii)   Be able to comprehend and appreciate the claims to which a person making a will ought to give effect (sound understanding)   

Legally it is still unclear as to the Mental Capacity Act 2005 (MCA) which came into force on 1st October 2007. The Courts have not given clear guidance as to what extent the MCA applies to the issue of testamentary capacity. 

In Scammell v Farmer the Deputy High Court Judge ruled against the application of the MCA because the case was not within the “purposes of the Act” and secondly, because the relevant will had been made before the Act came into force.

Judical ambiguity rules since this point so the key is to focus on the common law legislation.  

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