Testamentary capacity – a case update

by | Nov 12, 2021 | Blog Posts

testamentary capacity

When making a will, the testator (the person making the will) must have testamentary capacity. If the testator does not have testamentary capacity, the will is invalid. The issue of capacity is unfortunately quite familiar to contentious probate solicitors and the court. The High Court recently looked at an interesting dispute over whether the testator had testamentary capacity, which we will look at in this article.

What is testamentary capacity?

Testamentary capacity is a term used to describe whether an individual holds mental ability. If the testator lacks testamentary capacity at the time of making and executing a will, then the will is not valid.

Banks v Goodfellow: the testamentary capacity test

The 1870 case of Banks v Goodfellow sets out the test for testamentary capacity. For a testator to have testamentary capacity, they must:

  1. understand the nature of the will and its effect;
  2. have some understanding of the extent of the property of which they are disposing under the will;
  3. be aware of the persons for whom they would usually be expected to provide; and
  4. be free from any delusion of the mind that would affect their dispositions to those people.

Mental Capacity Act 2005

The Mental Capacity Act (MCA) came into force in 2005 and has featured in many cases, alongside the test for testamentary capacity as set out in Banks v Goodfellow. Under the Act, a person lacks capacity if:

  • he is unable to make a decision for himself in relation to the matter because of an impairment of, or
  • a disturbance in the functioning of, the mind or brain.

A testator must be able to understand any information and be able to use this information to make and communicate their decision. If someone cannot do any one of these things, a Court will deem them to lack mental capacity.

Clitheroe v Bond

In the 2021 case of Clitheroe v Bond, the High Court looked at the test for testamentary capacity.

Jean Clitheroe had two children, Sue and John. Jean made two wills, one in 2010 and one in 2013. When Jean passed from cancer in 2017, her estate was worth somewhere between £350,000 – £400,000. In both wills, she left the entirety of her estate to her son, John. Jean omitted Sue from both of the wills entirely as she believed her daughter was a ‘shopaholic’ and a ‘spendthrift’.

John issued court proceedings to admit both wills to probate. However, Sue challenged this, claiming that the wills were invalid as Jean did not have testamentary capacity. This would mean that Jean died intestate (i.e. without a valid will in place) and therefore that Sue and John would share the estate equally.

The Deputy Master found that both the 2010 will and 2013 will were invalid. He found that Jean was suffering with “an affective grief disorder within the meaning in Banks v Goodfellow” and therefore lacked testamentary capacity.

| The appeal

John appealed the decision and argued that the Deputy Master applied the wrong approach. John argued that the court should apply the two-stage test within the MCA to establish testamentary capacity, rather than Banks v Goodfellow. The Judge held that “it would not be in the interests of justice to permit this point” and stated that the “purposes of the MCA do not extend to determining where an individual had capacity to enter into a particular transaction that he or she had entered into”. The Judge confirmed that the test set out in Banks v Goodfellow has ‘withstood the test of time’ and was not replaced by the MCA. The Court confirmed that Banks v Goodfellow remains the precedent for ascertaining testamentary capacity.


The judgment and the comments made throughout in Clitheroe v Bond provide further transparency regarding the tests for testamentary capacity. The Court has confirmed that the test set out in Banks v Goodfellow remains “good law” and that the Mental Capacity Act has not replaced it. Although the MCA can be considered alongside, the Banks v Goodfellow test should still be primarily used for judging testamentary capacity.

If you would like to discuss making a will, or a dispute regarding a will, our team can help. Call Levi Solicitors on 0800 988 7756 for a free initial chat.

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