Lack Of Testamentary Capacity And Invalid Will Claims

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Lack of testamentary capacity: Contentious probate lawyer, Naomi Ireson, reports on the High Court ruling in the case of Walker v Badmin that the correct test for determining testamentary capacity for making a will is the one originally set out in the Victorian case of Banks v Goodfellow and not the test referred to in the Mental Capacity Act 2005.


Walker –v- Badmin involved the will of Mrs Elizabeth Walker. Mrs Walker had two daughters who were the claimants. In March 2007, Mrs Walker left her husband (the father of the claimants) to live with Mr Badmin.

In June 2009 Mrs Walker was diagnosed with a terminal illness, from which she died on 18 February 2010.

Shortly before her death, she divorced her husband and executed a new will on 3 January 2010. The decree absolute was granted on 28 January 2010.

Mrs Walker’s main assets were:

One half of the matrimonial hom
A claim to a share of her ex-husband’s pension assets
A pension payment of £45,643.12

The Will

The will provided for Mrs Walker’s share in the matrimonial home to be held on trust for Mr Badmin for life. Upon his death it would pass to her daughters. 50% of the residue was left to Mr Badmin and 25% each to her daughters. She also signed a letter explaining her reasons for doing this. The claimants alleged it was written by Mr Badmin.

The Invalid Will Dispute

The Will was challenged on the grounds of lack of testamentary capacity. It was said that Mrs Walker did not have the requisite mental capacity to make the will, and did not know of or approve its contents. The claimants asserted that she would never have made a will in those terms had it not been for her illness. They relied upon factual and expert evidence to demonstrate that by early January 2010 Mrs Walker had a lack of testamentary capacity. This evidence was challenged by the defence.

The Mental Capacity Tests

The traditional test of testamentary capacity is enshrined in the case of Banks v Goodfellow. A more recent alternative test is contained in the Mental Capacity Act 2005. Practitioners vary in their use of these tests.

The Judgement

The Court concluded that the Banks v Goodfellow test should be applied in such cases rather than the Mental Capacity Act test.

In summary, the judge concluded as follows:

  • There was no evidence to suggest that Mrs Walker did not understand the nature and effect of a will;
  • Overall Mrs Walker was well aware of the nature of her assets, despite a general level of uncertainty as to the value of her estate;
  • That Mrs Walker appreciated the claims to which she might give effect;
  • The evidence showed Mrs Walker retained her love and affection for her daughters throughout; and
  • This case provides much needed clarity as to the test to be applied when a challenge is made to the validity of a Will based on allegations of lack of testamentary capacity.

If you require guidance on challenging or defending the validity of a will on the grounds of lack of testamentary capacity contact contentious probate lawyer, Naomi Ireson, on 01823 354545 or email her direct at [email protected] for FREE initial advice.