The test for making a will

Not everyone has the sufficient mental understanding needed when it comes to making a will.

In cases of doubt, the legal test was set out back in 1870 in the case Banks v Goodfellow and this remains the primary authority, having been consistently and repeatedly supported by later cases. However, a recent family dispute has challenged this and it was suggested that the test set out in the Mental Capacity Act 2005 should apply instead. This has been rejected and the correct and only test for assessing whether someone has sufficient mental capacity to make a will is that outlined in the judgement in Banks v Goodfellow.

There are significant differences between the two tests – for instance, as regards the burden of proof.

However, the issue may yet be re-considered if a case reaches the Court of Appeal. Alternatively, the Law Commission may recommend the law is changed as part of its review into wills.

Nick Palmer is a lawyer at Barker Gotelee, Solicitors in Ipswich. Solicitors Ipswich Suffolk – for more information on our range of legal services, please contact us on 01473 611211.