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Making a Will - The distinction between memory and testamentary capacity

29 August 2014 #Real Estate

A recent case in the Court of Appeal (Simon v Byford and others [2014] EWCA Civ 280) reviewed the test of capacity for those seeking to make a Will. The Court of Appeal drew a clear distinction between capacity and memory. It held that the test for capacity depended on the potential capacity to understand, rather than memory, and stated that the test for capacity did not extend to unknown or unintended consequences of testamentary dispositions.

The facts of this case were as follows:

  • The testatrix had previously made a Will that favoured one of her sons (only so far as he would receive the testatrix’s shares in the family company)
  • The previous intention had been to give the son a controlling interest in the company, thus preventing any deadlock in family members’ votes
  • When the testatrix amended the Will in 2005, she treated all children equally, thus making deadlock a possibility
  • The son argued that as the testatrix could not remember her reasons for preferring him in her previous Will, she should be considered as lacking testamentary capacity when she signed the later Will - thus rendering it invalid

The Court of Appeal held that there was no authority that required a testator to understand the collateral consequences of a disposition as opposed to its immediate consequences, nor did they see it as desirable for the law to do so. They found that the testatrix’s ability to fully understand the significance of the disposition of the company shares lay in her ability to understand the shares already held by the other family members. The Court of Appeal held that this was beyond the requirements set out in recognised tests of testamentary capacity, which required the testatrix to understand no more than the extent of her own property – not that of others.

During the hearing the Court of Appeal revisited the test for capacity set out in the old case of Banks v Goodfellow (1870), which is still the common law test of capacity relied upon today for Wills which were signed before 1 October 2007 (the date the Mental Capacity Act 2005 fully came into force). Banks v Goodfellow stated that in order to execute a valid Will, a testator must:

  • Understand the nature of making a Will and its effects
  • Understand the extent of the property of which he is disposing
  • Be able to comprehend and appreciate the claims to which he ought to give effect
  • Have no disorder of the mind that perverts his sense of right or prevents the exercise of his natural faculties in disposing of his property by Will

For Wills signed after the Mental Capacity Act 2005 came into force, the Act sets out a two stage test for assessing capacity:

  1. Is there an impairment of or disturbance in the functioning of a person’s mind or brain? If so,
  2. Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?

Whenever there are any doubts with regards to capacity, a medical assessment should always be obtained - this is known as the golden rule.

Clarkslegal, specialist Real Estate lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Real Estate matter please contact Clarkslegal's real estate team by email at by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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