What is Testamentary Capacity?


Carly Jeffery, Solicitor | Thursday 26th January 2023

What is Testamentary Capacity and Why Do I Need it? 

You may be wondering why you have been asked to provide information about yourself; your family; your finances and health when making a Will.   

When you speak to one of our solicitors about your Will, they are not only interested in hearing what you think you might want to do, but to being able to give you the most well rounded guidance and advice about the risks to your estate; your tax position or your treatment of people around you. 

They are also keen to ensure that you have testamentary capacity.  This is the legal term meaning that you have the mental ability to make your Will; in that you understand what you are doing and the consequences of it. 

The threshold and test for whether someone has capacity to make their Will is unique.  If someone does not have testamentary capacity when they make their Will, the Will is invalid.  If someone disputes that someone had testamentary capacity at the time of making their Will, they can challenge the Will’s validity through the Courts. 

To Have Testamentary Capacity You Must: 

  • Understand the nature of making the Will and the effect of it; 
  • Understand the extent of your Estate you are disposing of in your Will; 
  • Be able to understand and weigh up those who they ought to consider in their Will and any moral obligations to them; 
  • Have no “disorder of the mind” which would prevent you from understanding; considering and making decisions about the act of making your Will 

This does not mean that making your Will is a memory test.  If you cannot understand and remember you own assets when discussed, then you are not necessarily guaranteed to be falling on the wrong side of the test. 

It also does not mean that if you are unwell or have an initial diagnosis of an illness such as dementia, you automatically cannot make a Will.  However, capacity can be difficult to judge and it might be fluctuating for some people so it can be important to look after yourself and your wishes by having your Will prepared by a solicitor who can take steps to ensure all the necessary records and procedures are taken to protect you as much as possible. 

How We Can Help:

Our private client solicitors specialise in helping you with mental capacity questions and Will making, they will be able to guide you through the Will making process. If you would like to speak to them regarding the creation of your Will, or to update your existing one, please contact us today.

On the other hand if you think a Will prepared by someone you love seems out of character and you question whether they had testamentary capacity at the time of making it, our head of litigation Alex Jeffery can talk to you about your options. 

Update Your Will Week 2023

This week (23rd – 29th January) is Update Your Will Week, an awareness campaign hosted by SFE to encourage more people to update their will and ensure their wishes are carried out when they die. This helps minimise disputes – easing distress (and costs) for your loved ones. Get in touch with us today and make sure your wishes are communicated when you die.