chapter  6
31 Pages

Capacity to make and revoke a will (testamentary capacity)

ByTracey Ryan-Morgan, Alex Troup

The legal test for testamentary capacity is that set out in Banks v Goodfellow. It is essential that a Testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing. There are particular difficulties inherent in the retrospective challenging of testamentary capacity. Effectively, the primary source of evidence is not available as the person is no longer living. The court will take into account retrospective assessments of testamentary capacity by suitably qualified experts, but only as part of the wider evidence. As was stated in Key v. Key, the issue as to testamentary capacity is, from first to last, for the decision of the court. K. I. Shulman and colleagues remind that expert assessors have the opportunity to describe patterns of behaviour associated with disease processes to the court.