MENTAL CAPACITY AND WRITING WILLS

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MENTAL CAPACITY AND WRITING WILLS

For a will to be legally valid, the person making it must have what is known as ‘mental capacity’ to do so. Mental capacity has a specific meaning in law, which is defined in the Mental Capacity Act 2005. The Mental Capacity Act applies to a number of areas of law, but the guidance which accompanies this piece of legislation is instrumental in helping us to understand what is meant by legal capacity. In this post, we look at what is meant by mental capacity when it comes to will-making.

Understanding Mental Capacity

In an early case reported in 1870 (Banks v Goodfellow), the Court set out a general test for when a person is deemed to have mental capacity. The test has four parts and is still very useful for assessing whether a person can make a legally valid will.

• The person must be able to understand that they are making a will and the consequences of making it. They must also be able to understand the effects of failing to make a will.

• The person must be able to have an understanding of what they own, and what they are ready to leave to their beneficiaries under the will.

• The person must be aware of the people who can expect to inherit from their estate.

• The person must not be experiencing or suffering from any kind of delusion, which may affect their decision-making abilities at the time of making their will. This can be either permanent or temporary mental illness or injury.

Determining If A Person Has Capacity

Whilst the Mental Capacity Act provides useful guidance, recent case law has confirmed that the main principles are those that are laid down in Banks v Goodfellow.

Just because someone makes a controversial choice in their Will does not necessarily mean they don’t have the capacity to make that Will. Mental Capacity is considered on a case by case basis.


Another important element of capacity is one of undue influence. This is a complicated area of the law but applies where the person making the will is only doing what another person has told them because they do not have the capacity to fully understand the issues at play.

I am a professional Will writer based in Leicester with over 18 years’ experience in this area of law. Get in touch today for a friendly, sensitive service that offers free home visits and weekend and evening appointments to make the process as easy as possible for you or your loved one.

2019-09-09T16:17:36+00:00 September 16th, 2019|Will writing|0 Comments

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