How is capacity to make a will tested in England and Wales?

The test comes from Banks v Goodfellow (1870) LR 5 QB 549. The person must:

• understand the nature of the act of making a will and its effects;
• understand the extent of the property they are disposing of;
• be able to appreciate the claims of those who might expect to benefit; and
• have no disorder of the mind that distorts their feelings or judgement, or leads them to make a gift they would not otherwise have made.

A person is presumed to have capacity. For decisions governed by the Mental Capacity Act 2005, section 1(2) says a person must be assumed to have capacity unless it is established that they lack it. For a will, the common law test above is the one applied. The Act's test is used for statutory wills made by the Court of Protection.

In practice the presumption means a properly executed, rational will is taken to be valid until someone gives a real reason to doubt it. When a firm sees a reason, such as illness, age or a recent diagnosis, it should do more than take the presumption for granted.

Kenward v Adams (1975) and Re Simpson (1977) set out the golden rule. Where an older or seriously ill person makes a will, it should be witnessed or approved by a medical practitioner who has satisfied themselves of capacity and made a record of the examination. This is practice guidance, not a rule of law, and a will made without it is not invalid for that reason alone. Following it produces the best evidence if the will is later challenged.

A short note made at the time is worth more than a long recollection years later. Record:

• who was present, and who gave the instructions;
• the questions asked and the client's own answers about their property and family;
• any reason to doubt capacity, and what was done about it; and
• any medical opinion obtained, and when.

• Banks v Goodfellow (1870) LR 5 QB 549
• Kenward v Adams (1975) and Re Simpson (1977), the golden rule
• Mental Capacity Act 2005, section 1
• Mental Capacity Act 2005, section 2