Estate planning: Testamentary capacity in the spotlight

'My top tip for futureproofing your will is follow the golden rule'

clock • 4 min read

Lawyer Nicola Bushby explains why contemporaneous medical assessments are essential for those drafting a will when the testator is elderly, ill or vulnerable...

A common ground for contesting a will is mental capacity. It is often deployed by disinherited family members to set aside a will. So, what is the test for mental capacity, how does it work in practice, and why are contemporaneous medical assessments important? What is the correct test? The common law test is found in Banks v Goodfellow (‘Banks') which has been the position for 150 years, albeit with some tweaks to accommodate modern notions of mental health and capacity. However, a second test introduced under the Mental Capacity Act 2005 in 2007 has polarised the debate between Court...

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