Annie are you OK, are you OK Annie? [at this precise moment in time whilst completing your last will and testament]

The Mental Capacity Act 2005 (“MCA”) introduced a framework for assessing mental capacity, enabling the court to assist persons who lack capacity to manage their affairs by taking decisions or by appointing decision-makers to act on their behalf.

MCA is not retrospective and not relevant in considering the validity of wills made prior to 1 April 2007 (see Scammell v Farmer [2008] EWHC 1100 (Ch), [2008] WTLR 1261 at [21] to [30]).

MCA is also of little use in considering wills made after 1 April 2007 save for statutory wills made with the assistance of the court. MCA makes clear that the definition of “lack of capacity” and the test for capacity set out in MCA are “for the purposes of this Act”. This means that the definition and test are ‘to be used in situations covered by this Act.’

In this article, I will provide, I hope, some useful points that may be used when considering arguments regarding mental capacity.

The first, and perhaps most important point: the common law test, otherwise known as the “Banks v Goodfellow Test” for testamentary capacity will continue to apply in probate claims.


The testator must be of sound disposing mind at the time when the will or codicil was made. (Arthur v Bokenham (1708) 11 Mod Rep 148).  The law requires that there should be a sound disposing mind both at the time when the instructions for the will are given and when the will is executed. Supervening lack of capacity will not revoke the will (again, Arthur v Bokenham) and subsequent capacity will not validate a will made when there has been an absence of testamentary capacity. (Brouncker v Brouncker (1812) 2 Phillim 57).

What is a sound disposing mind?

There are four requirements:

  1. The testator must understand that he is giving his property to one or more objects of his regard;
  2. he must understand and recollect the extent of his property;
  3. he must also understand the nature and extent of the claims upon him both of those whom he is including in his will and those whom he is excluding from his will;
  4. no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

Cockburn J, in Banks v Goodfellow ((1870) LR 5 QB 549 at 565) gives the generally accepted ‘plain language’ explanation of how to apply the four requirements:

”It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

Inevitably, the plain English is not always simple. A will has been held good save for the removal of one clause which was considered to be the result of a delusion: Re Bohrmann’s Estate, Caesar and Watmough v Bohrmann [1938] 1 All ER 27.

Mental Disorder

The law relating to persons suffering from mental disorders is now governed by the Mental Health Act 1983 (“MHA 1983”), amended by the Mental Health Act 2007 (“MHA 2007”).

Under MHA 2007 the single definition of ‘mental disorder’ which is any disorder or disability of the mind and the term ‘mentally disordered’ is to be construed accordingly.

Dependence on alcohol or drugs or a learning disability are not to be considered as ‘mental disorders’ per se, though there are some situations where a learning disability may, as a result of the, e.g. aggressive behaviour of the individual concerned, become a mental disorder.

Simply because a person is deemed to be suffering from mental disorder within the meaning of the MHA 1983 does not necessarily mean that he is incompetent to make a will.

NB, the current, single definition of ‘mental disorder’ replaces the previous four categories: of ‘mental disorder’, ‘severe mental impairment’, ‘mental impairment’ and ‘psychopathic disorder’.

Presumption of Sound Disposing Mind

It is presumed that the testator had a sound disposing mind at the time when he made his will (Wellesley v Vere (1841) 2 Curt 917) but, if sanity is contested, it is for the person arguing in favour of the will to prove that the testator was of sound disposing mind at the relevant time (Re Flynn, Flynn v Flynn [1982] 1 All ER 882 at 890).

While there must be a vigilant examination of all the evidence, if the court feels there is no doubt that is substantial enough to defeat a grant of probate, the grant must be made.

A point sometimes missed in argument is that proof of capacity or even proof beyond reasonable doubt is not essential ( Worth v Clasohm (1952) 86 CLR 439).

A will not irrational on its face, duly executed, is admitted to probate without proof of competence unless such competence is contested (Sutton v Sadler (1857) 3 CBNS 87).

It has been said, and it is certainly my own experience at court, that it is a very strong thing for a judge to find that a testatrix did not have mental capacity when her will had been prepared by an experienced and independent solicitor following a meeting (Re Simpson, Schaniel v Simpson (1977) 121 Sol Jo 224).

Evidence of Sound Disposing Mind

Documentary and oral evidence is admissible to show a sound disposing mind at the relevant time.

If a will is in the testator’s own handwriting, this is strongly in favour of his capacity (Cartwright v Cartwright (1793) 1 Phillim 90 at 100).

The evidence of a medical witness who has attended the testator is admissible but such a witness cannot be asked to give his opinion as to the existence of facts which he has not himself observed.

The evidence of experts, however, has been held not to outweigh that of eye-witnesses who had opportunities for observation and knowledge of the testatrix ( O’Neil v Royal Trust Co and McClure [1946] 4 DLR 545) and the court should be wary of placing too much reliance on the evidence of medical experts who did not have the opportunity of seeing the deceased (Burgess v Hawes [2013] EWCA Civ 74, [2013] WTLR 453).


In summary, the common law, Banks v Goodfellow test remains good law, save for in certain circumstances. There are many nuances as to what will/ will not be considered as relevant when determining whether an individual had a sound disposing mind at the relevant time.

A good knowledge of the (often historic!) caselaw can be tremendously useful in this area and can sometimes be the difference between winning and losing an argument at court.

For assistance with this, or any other area of probate law, contact for further information.