What is testamentary capacity?

One consideration that Estate Planners must always be mindful of is the one about ‘testamentary capacity’, or sufficient mental capacity to make a Will.

But how is it defined? If someone decides to completely disinherit their children and leave everything to the cats and dogs, does that mean they don’t have capacity? What if someone is clearly very odd and does really strange things? Is that a sign of lack of capacity? What about a man who chooses to enter and exit his property from an upstairs window, wears string instead of a belt, bathes in a local river and leaves money to an ex-tenant who he had previously evicted (true story)? Clearly he cannot be classed as having mental capacity when he behaves like that.

Well, one thing you learn quickly in this profession is that eccentricity, oddness, bizarre behaviour and doing silly, stupid or unwise things is NOT,  on its own, a sign that someone cannot make a Will through loss of capacity. I may choose to drive up the M11 at 120mph. Clearly that is a reckless, stupid and illegal thing to do. But it’s my choice to do so. So behaviour that constitutes being ‘as mad as a box of frogs’ in one person’s opinion might appear to be perfectly normal to the one acting in that manner. Everybody has the right to act idiosyncratically, which does not necessarily mean they lack capacity to make a Will.

Helpfully, we do have a piece of law that clearly sets out what the conditions are to test capacity to make a Will. It comes from a court case called Banks v Goodfellow of 1870 (a full 150 years ago!). Subsequent court cases (even very recent ones) have still held this test to be the gold standard of test when making a Will. So, what does it say?

In simple terms, Banks v Goodfellow has four principles:

1) Does the Will maker know what a Will is, what it does and how it works?
2) Do they know what they have and what their level of wealth is? It’s not expected that they know to the penny, but they need to know what’s what.
3) Do they know and understand who might normally have a claim on their estate. If they have children, for example, are they conscious of the fact that they may have a bigger claim than a charity, for example.
4) Finally, do they suffer from a disorder of the mind or an insane delusion that alters their sense of right and wrong or hinders them from using their natural abilities to dispose of their assets.

If the answer to the first three is yes, and is a no to the last one, then,it is deemed that they have capacity to make a Will.

As one example, people with schizophrenia have often been declared mentally capable of making a Will, as these condition affect people in different ways.

The difficulty is with the 4th principle. I may not know that a client suffers with a ‘disorder of the mind’ – often clients won’t admit to it.

Thus as long as the Banks v Goodfellow test can be passed, the nature of one’s behaviour, on its own, is largely irrelevant.