A person making a will must have the mental capacity to make it.

This means:

• they must be able to comprehend the extent of their estate;
• they must be aware of the people who they would usually be expected to provide for (even if they choose not to); and
• they must also be free from any delusion of the mind that would cause them not to benefit those people.

These principals were first established in a case called Banks v Goodfellow in 1870. The judgement in this case alongside the Mental Capacity Act 2005, is still followed today. In making decisions in cases where mental capacity is an issue, the court has established something known as the “Golden Rule“, which provides guidance to solicitors when preparing wills for vulnerable or elderly people.

The case of Re Simpson [1977] states that there is one Golden Rule to be observed – however straightforward the will and however uncomfortable the suggestion:

‘the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings.’

One of the most important parts of a solicitor’s job is to assess a client’s mental capacity and be sure they meet with the requirements of creating a valid will. Determining whether a client has testamentary capacity to make a will is vital in the preparation of every will.

Contact our Private Client Solicictors

We always take the necessary steps to ensure a will is valid. If a person lacks testamentary capacity we can assist with a Court of Protection application for a statutory will to be made on their behalf. Please contact our private client solicitors on 020 8240 9018 or submit our enquiry form on our website for more information.