What the law says about capacity
The legal test is more than 150 years old but is still applied today, and the courts have refined how it works in modern cases.
Banks v Goodfellow (1870) LR 5 QB 549
The person making the will must understand that they are making a will and what it does, have a broad idea of what they own, and be able to appreciate the people who might expect to benefit. No illness of the mind should distort their feelings or their sense of right and wrong so as to bring about a disposition they would not otherwise have made.
Key v Key [2010] EWHC 408 (Ch)
An 89 year old farmer changed his will a week after his wife died. The court found that grief had left him unable to weigh up the decision properly, and the will was set aside. Capacity is not only about memory. Severe emotional distress can be enough.
Clitheroe v Bond [2021] EWHC 1102 (Ch)
The High Court confirmed that the Banks v Goodfellow test still applies to wills, and has not been replaced by the Mental Capacity Act 2005. Two wills were refused probate where the mother’s grief and depression had produced false beliefs about her daughter.
Hawes v Burgess [2013] EWCA Civ 74
A reminder that the courts are cautious. Where an experienced solicitor prepared the will after meeting the person face to face, the court described a finding of incapacity as “a very strong thing”. Good evidence, particularly medical evidence, is essential.
