Challenging a will
Grounds in which a will can be challenged:
1. Lack of intention
2. Lack of capacity
3. Lack of formality
These elements must all be present for a will to be valid under the Wills Act 1837.
Grounds to challenge a will – Lack of Capacity
pg.367
Must be aged 18 or over (limited exceptions) and have mental capacity.
Proof and presumptions:
Banks v Goodfellow – common law test for mental capacity
Mental capacity was defined in Banks v Goodfellow as “soundness of mind, memory
and understanding”
The person must understand
o Nature of the event and its broad effects
o Extent of the property
o Moral claims he ought to understand
The person must not suffer from any insane delusion which affects disposition of
property.
The person putting forward a will has to prove all the necessary elements, including
mental capacity – not particularly burdensome as, where no signs of mental
confusion, capacity is presumed.
If there is anything to put capacity in doubt, the presumption will not apply and the
burden of proof is on the PRs to prove capacity on the basis of the Banks v
Goodfellow test.
Mental Capacity Act 2015
Statutory test for capacity for a person to take a decision
S1(2) states ‘for the purpose of this Act a person must be assumed to have the
capacity unless it is established that he lacks capacity”
Uncertainty as to if this test applies to wills
Case law would suggest this does not:
o Walker v Badman 2014 stated the test established in Banks v Goodfellow
applies
o James v James 2018 came to same conclusion as Walker v Badman
The burden of proof would be on the person bringing the claim of lack of capacity
NB: The law commission is reviewing the law on wills and succession and may well make
recommendations as to the correct test.
Grounds in which a will can be challenged:
1. Lack of intention
2. Lack of capacity
3. Lack of formality
These elements must all be present for a will to be valid under the Wills Act 1837.
Grounds to challenge a will – Lack of Capacity
pg.367
Must be aged 18 or over (limited exceptions) and have mental capacity.
Proof and presumptions:
Banks v Goodfellow – common law test for mental capacity
Mental capacity was defined in Banks v Goodfellow as “soundness of mind, memory
and understanding”
The person must understand
o Nature of the event and its broad effects
o Extent of the property
o Moral claims he ought to understand
The person must not suffer from any insane delusion which affects disposition of
property.
The person putting forward a will has to prove all the necessary elements, including
mental capacity – not particularly burdensome as, where no signs of mental
confusion, capacity is presumed.
If there is anything to put capacity in doubt, the presumption will not apply and the
burden of proof is on the PRs to prove capacity on the basis of the Banks v
Goodfellow test.
Mental Capacity Act 2015
Statutory test for capacity for a person to take a decision
S1(2) states ‘for the purpose of this Act a person must be assumed to have the
capacity unless it is established that he lacks capacity”
Uncertainty as to if this test applies to wills
Case law would suggest this does not:
o Walker v Badman 2014 stated the test established in Banks v Goodfellow
applies
o James v James 2018 came to same conclusion as Walker v Badman
The burden of proof would be on the person bringing the claim of lack of capacity
NB: The law commission is reviewing the law on wills and succession and may well make
recommendations as to the correct test.
