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Ally Tow
Ally Tow,
Testamentary capacity - a test of understanding, not memory
04 August 2014

It has long since been settled law dating back to 1870 and a case known as Banks v Goodfellow that for a will to be valid the testator should:

  • Understand the nature of a will and its effects.
  • Understand the extent of the property being disposed.
  • Comprehend and appreciate the claims to which effect should be given.
  • Have no disorder of the mind perverting the sense of right or preventing the exercise of natural faculties in disposing of property.

In addition, the testator must know and approve the contents of the will.

In Simon v Byford & Others Robert, one of the late Mrs Simon’s sons, sought to challenge the validity of her will on the basis that she lacked testamentary capacity and/or did not know and approve the contents of her will at the time of execution or immediately thereafter.


Mrs Simon had 4 children. Her late husband had founded a manufacturing company and the children each had a 24.99 shareholding in it. Mrs Simon held the remaining shares. By the time the disputed will was executed one of the children had died. The other 3 were directors at the company. Robert was the managing director.

Prior to the execution of the disputed will Mrs Simon had made 3 previous wills wherein broadly speaking she disposed of her estate to her children in equal shares.

In 1996 she executed a new will leaving more of the estate to Robert in preference to the other children. She then executed the disputed will in 2005. This favoured the 2 other surviving children at the expense of Robert.

It was common ground that Mrs Simon’s mental health had begun to deteriorate from 2001 and by the time the disputed will was executed she was suffering from mild to moderate dementia. However, expert medical evidence showed that she had good and bad days.

At first instance the court found that on the day of execution of the disputed will Mrs Simon was having one of her good days and that she had fully understood the effect of the will and further that it had been her wish to leave the property to her children in equal shares. Accordingly, the Judge pronounced in favour of the disputed will. Robert appealed.

Grounds for appeal

Robert contended that the Judge was wrong to find as he did. In support he sought to rely on part of the judgment wherein the Judge found Mrs Simon “was not capable of remembering her reasons for preferring Robert in her previous will, or its terms”. This, Robert contended, amounted to a finding of lack of testamentary capacity and/or lack of understanding of the extent of her estate.

When considering the question of testamentary capacity the court found there was no requirement for a testator to pass a strict memory test, the legal requirement being only to ensure testators had been capable of understanding what they were doing and that the will had truly reflected that which the testator freely wished to be done with their estate.

Based on the evidence of witnesses who had been present at the time the disputed will had been executed the court found that Mrs Simon had not only understood the contents of the will and the dispositions that she was intending to make but also that the will had represented her wishes. Whilst it was the case that she could not immediately remember all specific details relating to her assets and the contents of her previous will she had made informed decisions regarding the contents of her new will and the dispositions that she was intending to make. Her inability to pass a strict memory test was not sufficient to show she lacked testamentary capacity.

As to knowledge and approval of the will the court held that all that was required was the ability to understand and approve choices made by the testator. The court found Mrs Simon’s desire to leave her estate to her children in equal shares was perfectly reasonable and this, coupled with the fact that the will had been read over to her several times before execution, was such as to show full knowledge and approval of the will.

Accordingly, the appeal was dismissed and the disputed will was propounded. 

For further information, please contact our Dispute Resolution Team on 0118 952 7206 or submit an enquiry.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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