10/09/25
Working as a professional adviser, you encounter all kinds of client situations and family circumstances. Some of these are challenging. One such circumstance is the issue of testamentary capacity.
What should you do if you suspect your client lacks the mental capacity to make their will?
What is testamentary capacity?
Testamentary capacity is a measure that ensures a testator has the necessary mental capacity to make a valid will.
There are various factors that affect testamentary capacity. These include a head injury, poor mental health, a congenital condition (something the client was born with), or a condition they’ve developed later in life, such as dementia.
With the rise in people living longer, it’s becoming more and more common to encounter clients with age-related conditions that may affect their ability to make a valid will. Recent statistics show 1 in 5 of us will develop some form of dementia within our lifetimes, and this figure is expected to increase.
As the person who deals directly with the client when making their will or LPA, it’s essential you know how to spot the signs of diminished capacity and what steps to follow to ensure any planning they put in place is valid and incontestable.
Banks V Goodfellow
The historical case of Banks V Goodfellow set the grounds for establishing testamentary capacity over 150 years ago.
The case dealt with the will of Mr John Banks, a wealthy landowner who suffered from delusions and epilepsy throughout his life. In 1863, Banks made a new will leaving his sizeable estate to his niece, Margaret Goodfellow. Banks died two years later, and shortly after, so did his niece. His heir at law, William Banks, contested the will on the grounds that Banks lacked testamentary capacity at the time of making it.
The court used the following criteria to assess Banks’ state of mind at the time of making his will. They found that he did indeed have ‘a sound disposing mind’ and the will was valid. These criteria are still used today to establish a testator’s mental capacity to make a valid will.
To have testamentary capacity the testator must:
- Understand the nature of what a will is, what the act of making a will means, and its effects;
- Understand the extent of their property and what they are giving away;
- Be aware of ‘the natural objects of their bounty’ – the people who would normally be expected to inherit from them – and be able to comprehend and appreciate the claims of those people;
- Be free from any ‘disorders of the mind’ that would affect their ability to make a rational decision about their property.
Testamentary capacity: initial client assessment
When you first meet with your client, you should use the Banks V Goodfellow criteria to check they meet with the requirements for testamentary capacity.
It’s essential you base your conclusions solely on your own observations and do not rely on information or accounts from other people unless they are medical professionals.
Be vigilant of any suspicious circumstances when you meet with your client, especially if they seem confused, anxious, or vulnerable.
The presence of any friends or family members there to offer ‘help’ could indicate they have their own agenda when it comes to the client’s estate.
This can lead to issues relating to undue influence, compromising the validity of any planning you put in place, and leaving it open to future contestation. So, always be mindful of any third parties who attend your client meetings.
Baverstock Vs Baverstock
In a recent case, damning video evidence showing a daughter physically helping her dying mother to sign her will resulted in it being successfully challenged by the testator’s son.
Margaret Baverstock, 76, was severely ill with advanced dementia, arthritis, and suspected lung congestion when she signed over her £700,000 estate to her daughter, Lisa Baverstock, in March 2021. Eight days later, Margaret passed away.
Her son, John Baverstock, contested the will on the grounds that it was “not the independent act of the deceased” as the video footage clearly showed Lisa moving her mother’s hand over the page to help her sign it.
The judge presiding over the case ruled that the will was invalid on the grounds of testamentary capacity, stating that Margaret Baverstock “had no idea what was going on” at the time of signing and that the signature bore no resemblance to Margaret’s true signature from 2017.
If you are in any doubt whatsoever about your client’s testamentary capacity, it’s strongly advised that you cease taking any instruction until a formal testamentary capacity assessment has been carried out.
Getting a testamentary capacity assessment for your client
If, having met with your client, you have concerns over their testamentary capacity, it’s recommended you arrange for them to have a formal testamentary capacity assessment before taking any instruction from them.
This covers you, your client, and their planning, should there ever be any question in the future over its content or validity.
At CTT, we provide our members with hands-on support with the process of arranging and obtaining testamentary capacity assessments for clients.
Working in partnership with recognised and trusted providers, we handle the admin and appointment process, so you’re free to progress your other clients’ cases while awaiting the results.
Once the assessment is complete, you’ll receive a notification from us confirming its findings, and the peace of mind to either pursue or decline the case having done due diligence.
CTT Legacy Software: giving you extra peace of mind
In addition to ensuring your client has the necessary capacity to make their will, it’s also advisable to document the reasoning behind the wishes outlined in their planning.
This covers both you and the client in the event that the will is ever challenged. This is especially significant when dealing with exclusions; it’s not enough to simply cut a potential beneficiary from the will. The testator must make it clear that they are:
aware of ‘the natural objects of their bounty’ – the people who would normally be expected to inherit from them – and be able to comprehend and appreciate the claims of those people.
In other words, say exactly who they do not wish to inherit (if that person would otherwise naturally have a claim) and specify why.
To make it easy for you to follow this best-practice approach, our CTT Legacy Software has been developed to produce a Will Clarity Statement alongside all client planning carried out on the platform.
This is a separate document that the client signs, explaining all the reasoning behind their choices, and provides an extra layer of protection for both their planning and your practice.
If you need help with establishing a client’s mental capacity to make a will or need to arrange a testamentary capacity assessment for your client, contact a member of the Partnership Team today.
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