Understanding mental capacity

May 11, 2020

Parties contesting Wills typically claim there was “undue influence” placed on the deceased when he or she wrote a will. Or they may say that the testator (person writing the Will) did not have the “mental capacity” at the time.

The number of inheritance disputes brought to the high court has jumped eight-fold in 10 years, with many more ending up in the county court. In some cases the legal costs involved take every penny of the inheritance.

So how do you protect against such an eventuality and ensure your estate goes to those whom you intended?

Having a third party trusted professional involved in your Will-writing lessens this risk of such a challenge. They are unlikely to carry out work for anyone they suspected of not having the capacity to understand what they are doing.

Assessing capacity

At Kinherit, we carry out a course of in-depth conversations with the person making the Will and our specialists are trained to understand testamentary capacity. We cover all aspects of planning, not simply writing a Will.

It is important to remember that should a Will be challenged, the court is only concerned with the testator’s mental capacity at the time of making the will. It is also possible for someone to have a mental illness, but be in a position to understand and decide who should benefit from their estate.

Original case law was set in 1870 when John Bank’s will was contested. Mr Banks had spent years in a lunatic asylum and had delusions, but the court found he was still capable of making a decision around his estate.

Our specialists apply the Banks vs Goodfellow test over the course of all client interactions. We ensure clients satisfy the required criteria and that they:

  • Understand the nature of making a will and its effects.
  • Understand the extent of the property of which they are disposing.
  • Be able to comprehend and appreciate the claims to which they ought to give effect.
  • Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.


All customer calls are also recorded, along with system data entry, to provide clear accountability. We also note consultations to make it easier for people to take out Wills.

Coronavirus outbreak

A major overhaul of probate legislation is on the agenda, as the government urgently looks to change requirements around witnessing will in the wake of the coronavirus outbreak.

The Law Society and the Ministry of Justice are discussing ways to deformalise the signing of wills and to make it quicker to register for lasting powers of attorney. Currently a will must be signed by the testator and two independent witnesses.

Current laws around the signing of Wills have been in place since 1837. Once these changes are in place, we believe that this will be a massive step forward, and will continue to positively affect the industry for generations. We will keep you updated with any new details.

At Kinherit, we have a team of highly trained specialists to provide you with bespoke solutions. Certain members are also trained to cover more complex situations, such as where business or agricultural assets are involved.