What Is the Test for Legal Testamentary Capacity

What Is the Test for Legal Testamentary Capacity

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, unravel the test for legal testamentary capacity

What is legal testamentary capacity and why is it important in Will dispute and Will contest claims?

Legal testamentary capacity is the capacity or ability to make a legal Will. Without it a Will can be declared invalid which means the testator’s estate (“the testator” is the legal term for the person who has made the Will) can pass under a previous valid Will or if none, by the rules of intestacy. Given many estates are worth hundreds of thousands of pounds (if not millions in some instances), the failure of a Will because the testator lacked “legal testamentary capacity” can have serious financial consequences.

The legal test for capacity to make a Will in England and Wales is laid down in a case called Banks v Goodfellow. Our earlier blog refers at:


Here is our earlier summary:

The test for capacity to execute a valid will is based in case law. A testator must:
• Understand the nature of making a will and its effects.
• Understand the extent of the property of which they are disposing.
• Be able to comprehend and appreciate the claims to which they ought to give effect.
• 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).

What level of understanding and/or mental capacity is required to pass the capacity test

The only way to determine whether an issue with capacity on the part of the testator at the time the Will was made could undermine its legal validity is to look at how the Courts tend to deal with this issue in real cases; it is fraught with complexity depending on the facts. For instance, a Will for an elderly or infirm testator prepared by a Solicitor who took care to understand the testator’s wishes and to check his/her mental capacity, is more likely (than not) to be upheld. The recent decision by the Court of Appeal (Hughes v Pritchard [2022] EWCA Civ 386) in relation to a Will so made but found by a Judge at first instance not to be valid on the grounds of lack of legal testamentary capacity, reveals a strong reluctance to gainsay the findings of an experienced and careful Solicitor:

Hughes v Pritchard & Ors [2022] EWCA Civ 386 (24 March 2022) (

Understanding the extent and nature of the property they are disposing

This is such an interesting part of the legal test for capacity because in many instances the testator simply cannot know and/or understand the extent and nature of his/her estate – very generally it is common for an elderly or infirm testator to cede the control of their finances to a near relative at a certain point in their lives. This is sometimes indicative of an inability to understand; but not necessarily so. Very often it is because that person is not physically able to get to the bank and/or deal with financial matters on the telephone and/or via the computer or because he/she lacks the expertise to do so. Plainly though, it is going to more difficult to prove understanding (and perhaps easier to prove a failure to understand) on the part of a testator of his/her finances after death. Given so, the capacity test has been watered down to provide that this element is passed provided it can be shown the testator was capable of understanding the extent and nature of his/her estate rather than actually understanding it.

There is very good detail about this and the test for legal capacity in general in Re Loxton [2006] EWHC 1291 (Ch):

Loxston, Re [2006] EWHC 1291 (Ch) (04 May 2006) (

Mr N Stauss QC’s Judgment at paragraphs 192 and 193 in particular apply:

Nor do I think that Miss Loxston’s ignorance of the value of her shares affected her testamentary capacity. There is little authority on the extent of the knowledge which a testator must have of his property for the purposes of testamentary capacity, but it seems to me that it must depend upon the nature of the disposition which he is likely to wish to consider making. In some circumstances, it might well be necessary for the testator to know the approximate value of his assets, and indeed liabilities, particularly if what he is contemplating is making a series of pecuniary legacies, the amount of which would depend upon the value of the assets available. I do not think that this is the case here. Even if Miss Loxston had been considering a wider range of beneficiaries, it is probable that she would have left a proportion of her assets to each beneficiary, and for that purpose it was quite sufficient that she knew that there were shares of substantial value.

  1. Further, as was pointed out by Mr Michael Briggs QC in Minns v Foster, 13th December 2002 at para 115, the question is not whether the testator actually knew the extent of his property, but whether he was capable of understanding it, and I think that Miss Loxston would have been capable of understanding the value of her shares, if she had been told what it was.

However, actual understanding of the estate value by the testator will be required if he/she is making a series of pecuniary legacies, the amount of which would depend on the value of the assets available.

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