Will Validity - Capacity Flashcards
At what age can a person make a valid will?
person must be 18 or over, except for limited exceptions (e.g. military personnel).
What is the legal test for testamentary capacity?
Banks v Goodfellow, a testator must:
- Understand the nature of making a will and its effects
- Appreciate the extent of their property
- Recognise the moral claims upon them
- Not be affected by a mental disorder influencing the will
What is required to satisfy the ‘extent of property’ requirement?
A general understanding of the estate’s nature and approximate value—not a precise inventory.
What does the ‘moral claims’ limb require?
The testator should understand who may have a moral claim on their estate (e.g. close family), but they are not required to benefit them.
When must a testator have testamentary capacity?
At the time the will is executed.
What is the Parker v Felgate exception?
If the testator had capacity when giving instructions and understood they were signing a will based on those instructions at execution, the will is valid—even if they lacked full capacity at execution.
Can testamentary capacity fluctuate?
Yes. Conditions like dementia may cause intermittent capacity. Capacity must be present at the relevant time.
Who bears the burden of proving testamentary capacity?
Initially, the propounder of the will—but if the will appears rational and is properly executed, capacity is presumed.
How can the presumption of capacity be rebutted?
By producing evidence sufficient to raise doubt about the testator’s capacity.
What happens if the presumption is rebutted?
The burden returns to the propounder to prove the testator satisfied Banks v Goodfellow.
Can a person lacking testamentary capacity make a will?
No. But the Court of Protection may authorise a ‘statutory will’
What must the court be satisfied of to make a statutory will?
That making the will is in the person’s best interests, often because they’ve never made one or their circumstances have changed.
