PT-2023-BRS-000112 - [2025] EWHC 2633 (Ch)

As to the first of these questions, the test for testamentary capacity is well known. In Banks v Goodfellow (1870) LR 5 QB 549, Cockburn CJ said (at 565):

“It is essential …that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

Moreover, it is now established that this test has not been affected by the provisions of the Mental Capacity Act 2005: see Re Clitheroe [2021] EWHC 1102 (Ch).

It is important to understand that the policy of the law is to enable persons who may be elderly, of modest or even limited intelligence, and even suffering from illness, and taking medication, to make wills. So, for example, simply being mistaken does not take away capacity. In Re Belliss (1929) 141 LT 245, Lord Merrivale P said that “Mere mistake of fact as to persons or property would not stand in the way of probate”. The level of testamentary capacity must therefore not be pitched at too high a level. The court in Banks v Goodfellow (at 566-568) approved statements in earlier American authorities which emphasised that people had capacity to make wills though they had poor memories, though their faculties had declined with age and disease, and though they repeated themselves or asked foolish questions. And, as Lewison LJ said in Simon v Byford [2014] EWCA Civ 280, “capacity depends on the potential to understand. It is not to be equated with a test of memory.”