High Court confirms legal test when judging capacity to make a will

The High Court has recently confirmed the correct legal test to applied when a court considers whether a testator (a person who makes a Will) had capacity to make a Will where this is disputed.

In James v James [2018] a son challenged his late father’s capacity to make a Will (at the age of 79) that left his estate to his wife and daughters. The mother and daughters said that the son had effectively had his inheritance already in that he received some land and the family business a few years earlier. In considering the father’s capacity, the court upheld the traditional ‘common law’ test (set out in Banks v Goodfellow  back in 1870) and confirmed that there is a distinction between this test and the test applied by the Court of Protection (the court which deals with cases relating to mental capacity) under the relevant legislation (the Mental Capacity Act 2005) as to whether someone has capacity during their lifetime. Following these considerations, the court found that the deceased had capacity at the time of execution of the will and the will was valid.

The decision in James is a useful clarification given the two competing tests. It also underlines the ‘golden rule’ which is that, where the testator is elderly or suffering from a serious illness, the Will writer should consider whether it is necessary to obtain a report from a medical consultant on the testator’s capacity – so that this can be used as evidence if the Will is contested by someone.

If you would like to discuss any issues in relation to disputed Wills or the Court of Protection, Simon Tilling in our private client team would be happy to assist.

Simon Tilling is a solicitor in the Private Client department at Barker Gotelee Solicitors in Ipswich.

Suffolk Wills Solicitors – for more information on our range of legal services, please call the team on 01473 611211 or email [email protected]