One of the most important things when drafting a will is to be sure that the testator (the person making the will) has the appropriate testamentary capacity. The common law test as outlined in the historic case of Banks v Goodfellow can be found here in one of our previous blogs.

Burns v Burns

One of the ways a will can be challenged is by someone claiming that the will is invalid because the testator didn’t have the required capacity.

A recent case of Burns v Burns [2016] has again highlighted this important issue. The deceased, Eva Burns died in May 2010. She had made two wills in the last 7 years of her life which divided her estate between her two children differently in both wills. In the first, she gave a greater interest to one of them and in the second she simply split her estate between them. Around the time of the second will, Mrs Burns had a medical test which showed that she was:

[su_quote]poorly orientated as to where she was in time and place, had poor recall and that she had problems with analysis and simple task planning[/su_quote]

The solicitor at the time of signing the will held that, despite her ill health, she was in good mental health and understood the nature of the will and its contents.


The Court of Appeal subsequently upheld the first court’s finding that the later will was valid as Mrs Burns had the required capacity when she gave instructions for the will and approved the draft, and that she knew the will she signed was in accordance with her instructions.

The Court also took the view that Mrs Burns’ solicitor was an experience private client lawyer who was of the opinion that Mrs Burns understood and approved what she was signing and that this was sufficient for the court.


Assessing the capacity of a testator is one of the key things a private client solicitor will need to do and this will be assessed by the solicitor in conjunction with the common law and statutory tests. Whilst doing this, the “Golden Rule” must also always be considered, that is that medical evidence in relation to capacity should be obtained and a contemporaneous note being made if the testator is aged or seriously ill.

Obtaining medical evidence does not establish capacity itself but it does assist with avoiding or at least reducing later disputes.

If you want to discuss making a will or if you have any concerns in relation to testamentary capacity, please give our specialist Wills,Trusts & Probate solicitors in Leeds, Bradford, Wakefield, Manchester and London a call on 0113 244 9931.