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It has long been established that in order for a will to be valid as well as ensuring it is executed in accordance with the formalities of Section 9 of the Wills Act 1837, testators must also have, amongst other things, the requisite testamentary capacity to make a will. In this article, we look at the concept of testamentary capacity. What does it mean? How is it assessed and what happens if a testator does not have testamentary capacity?

Testamentary capacity   writing wills

Testamentary capacity – what is it?

Testamentary capacity is the legal term used to describe a person’s legal and mental ability to make or alter a valid will.


What is the correct legal test?

The correct legal test for testamentary capacity is the common law test first set out in the case of Banks V Goodfellow back in the late 1800s. The Banks case established that in order for a testator to have testamentary capacity, they must:

  • Be able to understand the nature of making a will and its effects;
  • Be able to 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; and
  • 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.


Is this legal test affected by the Mental Health Act 2005?

The common law test for testamentary capacity insofar as it applies to the execution of wills is not affected by the provisions of the Mental Health Act 2005 (“the Act”). When the Act first came into being, there was some doubt as to whether the capacity test as set out therein applied to the execution of wills but this doubt was laid to rest by the High Court on appeal in the case of Clitheroe V Bond [2021].

The Clitheroe case concerned the validity of two wills. The deceased’s eldest daughter had sadly died from cancer in 2009 following which she had made two wills in 2010 and 2013. Both wills provided predominantly for her son to inherit her estate with her other surviving daughter being disinherited. She challenged the validity of the wills asserting that her mother was suffering from insane delusions caused by a complex grief reaction to her sister’s death and thus depriving her of the requisite testamentary capacity.  At first instance, the court upheld her claim. The two wills were held to be invalid and her mother was held to have died intestate. On appeal, her brother tried to argue that the test in the Act should be used when considering the question of testamentary capacity but he was unsuccessful in this respect.


How and when is testamentary capacity assessed?

Testamentary capacity is assessed at the time of execution of the will. If a professional will writer has been engaged to prepare the will it will usually be assessed by that person at the time of giving of instructions and again upon execution and subject, in most cases where the question of testamentary capacity may be called into question, to compliance with the so-called “Golden Rule”.


What is the “Golden Rule”?

In the case of Kenward V Adams [1975] Templeman LJ (as he was then) stated:

“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and how difficult or tactless it may be to suggest that precautions be taken: [the rule is that] the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding.”.

Following this judgment, the so-called “Golden Rule” has become a rule of best practice for all professional will writers. Whilst not being a statutory requirement, it does assist the court when considering the question of capacity in the event of any challenge to a will following a testator’s death.


Is the professional will writer’s assessment capable of being challenged?

Whilst any capacity assessment carried out by a professional will writer will likely carry significant weight with the court, it remains the duty of the court to determine whether, as a matter of fact, the testator had the requisite testamentary capacity. The professional will writer’s assessment evidence is only one matter which the court will have regard to when considering the position.


Is there any other evidence which may be relevant?

When considering the question of testamentary capacity, the court will want to consider all circumstances surrounding the execution of the will. Witness evidence from family and friends as regards conversations that they had with the testator wherein he expressed his testamentary intentions will be relevant as will a review of any previous wills that he may have executed as well as, of course, the testator’s medical condition at the time of preparation and execution of the will.

In this respect, evidence from expert medical practitioners will also usually be considered but again, the weight which the court will apply to such evidence will not be determinative of the issue, particularly if the practitioner in question did not meet personally with the testator and has formed their opinion based on their medical records only following their death.


Is there any exception to the rule regarding testamentary capacity?

There is one exception to the rule regarding testamentary capacity. This has become known as “the Rule in Parker V Felgate”, details of which of which I set out below but essentially it provides that if a testator has lost capacity by the time he executes a will, it is enough that he understands that he is executing a will for which he has previously given instructions.


What are the fact of the Parker V Felgate case?

In the Parker case the testatrix had been involved in giving instructions to her solicitor to prepare a will following a series of interviews. The last alterations were made following instructions given on 24 July 1882 and 10 August 1882 with the will then being drawn up in its final format. On 26th August, the testatrix fell into a coma. She was, however, sufficiently roused enough to execute the will on 29th August. The question for the jury (as these cases were determined in those days) to decide therefore was whether she had the requisite testamentary capacity to execute the will on the day that she did.


What did the court say?

In summing up to the jury, Sir James Hannen put forward three possible states of mind which would be sufficient to establish capacity:

(a)  If a person has given instructions to a solicitor to make a will and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far “I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out.”.

(b)  Even if she could not recollect all that had gone between her and the solicitor, she was in a condition, that if each clause of this will had been put to her, and she had been asked “Do you wish to leave so and so so much?” or “Do you wish to do this?” as the case may be) she would have been able to answer intelligently “yes” to each question;

(c)  A person might no longer have capacity to go over the whole transaction and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself “I have settled that business with my solicitor. I rely upon his heaving embodied it in proper words, and I accept the paper which is put before me as embodying it.”.

The rule also provides an exception to the general principal that the testator must know and approve of the contents of their will at the date of execution.


Is the Parker V Felgate rule still good law?

For some time practitioners have generally felt uneasy about the rule in Parker V Felgate. The idea that someone who lacks capacity at the time of execution of the will is nevertheless competent to execute the will instinctively feels wrong. Despite this, the rule remains good law and attempts to challenge it have all been unsuccessful including the recent case of Perrins V Holland [2010].


What were the facts of Perrins V Holland?

Robert Perrins died on 31st January 2003. His last will which was the subject of the court proceedings was executed by him on 26th September 2001.

Robert had suffered with insulin dependent diabetes since his teenage years. In 1991 he was also diagnosed with multiple sclerosis. By early 2000 his condition had deteriorated to the extent that he was unable to read or write, had little or no control of his movements and was confined to a wheelchair. He also had great difficulty in communicating.

On 5th April 2000 a professional will writer called Robert and took instructions for a will, the general effect of which was reflected in the final will as executed and a draft of which was forwarded to him by way of a letter dated 12th April 2000.

Over the next 18 months or so, various communications were sent by the solicitors to Robert as regards approval of the draft will and to make arrangements to execute the same. Eventually, without any explanation for the delay an appointment was made for him to attend at the solicitor’s offices on 26th September 2001 when, according to evidence given by the professional will writer, he provided Robert with a summary of the effect of each clause in the will and then asked if was happy with it.  Robert indicated his consent by saying “yes” in answer to that question. The will writer wrote in the date of the will and produced a rubber stamp upon which Robert’s hand or arm was placed and the weight of his limb caused his mark to be made on the will. The documents were then witnessed in the usual way.


What did the court decide at first instance?

At first instance, the judge found that at the date of giving instructions on 5th April 2000 Robert had testamentary capacity. However, by the time he executed the will on 26th September 2001 he had lost that capacity. He went on to find that the will as executed accorded with the instructions given in April. He also considered that Robert’s intentions in April 2000 remained the same in September 2001. Finding, in essence, that Robert fell within the second state of mind as set out in the rule in Parker V Felgate, he concluded that the will was valid. He also found that Robert had known and approved the contents of the will.


What were the grounds of appeal?

On appeal, the following points were argued:

(i)           The decision in Parker V Felgate was and is wrong in principle and should not be followed.  The law requires a testator to have testamentary capacity at the time he executes his will and there is no justification for any relaxation of that requirement.

(ii)          The conclusion of the judge at first instance that Robert knew and approved the contents of the will at the time he executed it is logically indefensible and wrong in law. If the testator did not have testamentary capacity when he executed his will on 26th September 2001 he could not have known and approved its contents.

(iii)         When considering the rule in Parker V Felgate the judge at first instance failed to consider whether at the time Robert gave instructions to his solicitors on 5th April 2000 such instructions were “settled” in the sense that the court used that word in the third possible state of mind as determined by the judge in Parker V Felgate and as set out above.


What did the court of appeal decide?

The court of appeal found that the rule in Parker V Felgate was not to attack because there was previous strong authority which supported the rule and from which the court ought not to depart. It also held that the rule was good law and justified.

On the issue of the apparent mismatch between the judge’s finding that Robert lacked capacity but nevertheless knew and approved the contents of the will, the court of appeal rejected the argument that in order to know and approve the contents of a will, the testator had to have capacity.



It remains to be seen whether the number of cases seeking to rely on the rule in Parker V Felgate will increase following the Perrins case. It is likely that practitioners will, however, remain concerned regarding the rule. The difficulty in relation to the rule is that once instructions are given, a testator cannot change his mind if incapacity intervenes. The deprives a testator of the basic right to check at the point when the will is executed if it truly carries out his wishes.

If you would like to receive advice and assistance regarding a case where you wish to rely on the rule in Parker V Felgate or, alternatively, wish to defend a case where such a claim is being brought, please contact our team on [email protected].

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.

Get in touch

If you have any questions relating to this article or have any legal disputes you would like to discuss, please contact the Dispute Resolution team on

[email protected]
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