Testamentary capacity [Part 1] Capacity to make a valid Will

Testamentary capacity is the legal term used to describe a person's legal and mental ability to make or alter a valid will. If the person making the will (testator) lacks testamentary capacity at the time that the will is executed, the will is invalid.

The test for capacity to execute a valid will is based in case law (Banks v Goodfellow (1870) LR 5 QB 549)

A testator must:

1. Understand the nature of making a will and its effects.
2. Understand the extent of the property of which they are disposing.
3. Be able to comprehend and appreciate the claims to which they ought to give effect.
4. Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.

The level of understanding required by the test varies according to the complexity of the will itself, the testator's assets and the claims on the testator (Banks v Goodfellow (1870) LR 5 QB 549).

If the above factors are present, a court would likely find that the testator had testamentary capacity and that the will is valid, excluding any other circumstances. These are the questions that should be asked, explored and discussed before someone signs their will. Otherwise, they will be asked after the testator is deceased and someone is unhappy with their inheritance.


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