When advising on and drafting a Will, a Solicitor must ensure that the Testator (the person making the Will) has full capacity to make the decisions featured in the document.  Failure to do so can leave the Will open to challenge by disgruntled beneficiaries or those who believed they should have benefited from the Will.

Therefore, to ensure the best interests of the Testator are protected, verifying testamentary capacity is not simply a check-box exercise.  It is essential for a Solicitor to be confident that a Testator can fully understand the nature of the decisions they are making and that those decisions are being made freely.

Below are five key points about testamentary capacity in Scottish law. 

One – Testamentary capacity refers to legal and mental capacity

There are two critical requirements for testamentary capacity - the Testator must be of full age and must possess the requisite mental capacity. 

In Scotland, the age of testamentary capacity is 12 years.  In England and Wales, the age is 18 years. 

Two – Mental capacity means that the Testator was of ‘sound mind’ when making their Will

A person making a Will must be of ‘sound mind’.  Having a Will challenged after death on lack of testamentary capacity grounds can be very painful, expensive and time consuming for your loved ones.  Therefore, it is always best to ensure that testamentary capacity is established at the time of drafting.

Three – There are specific legal tests to establish mental capacity

The case of Banks v Goodfellow (1870), established the following tests for establishing if the Testator has mental capacity:

• The Testator must understand the nature of making a will and the consequences of their decisions.
• The Testator must understand the extent of the property of which they are disposing.
• The Testator must be able to understand and appreciate the claims to which they ought to give effect (i.e. who might bring a claim against the Will).
• The Testator must have no “disorder of the mind” that distorts their sense of right or prevents the exercise of their natural faculties.

While the language used in this 150-year-old caselaw may appear somewhat antiquated, it still applies to this day and is used readily by the Courts.  Banks v Goodfellow has stood the test of time due to its concise clarity. The Banks v Goodfellow test has been approved by many Scottish legal decisions.

Every case for establishing mental capacity will be decided on its facts.  A Testator may not have the capacity to make complex decisions; however, be perfectly capable of giving instructions for a basic Will.  The tests are objective, and the Testator only needs to be capable of understanding the nature of their actions – actual understanding is not required. 

Four - The Adults with Incapacity (Scotland) Act 2000 (AWISA 2000) also provides a test for testamentary capacity

When compared to case law, the test for mental capacity is broader under the AWISA 2000.  "Incapable" under the Act means incapable of:

• acting
• making decisions
• communicating decisions
• understanding decisions
• retaining the memory of decisions

by reason of “mental disorder” or of inability to communicate because of physical disability.

Incapacity is construed accordingly.

The Courts will not use the AWISA 2000 test when establishing whether a Testator had mental capacity; they will instead rely on the tests set out in Banks v Goodfellow.  Therefore, someone who is deemed not to have capacity under the AWISA 2000 because they suffer memory loss, could be deemed as fully capable of making a Will.

Five – There is no ‘golden rule’ under Scottish law

Under the law of England and Wales, in all cases where there is an elderly Testator or one who is suffering from (or has recently suffered from) a serious illness, the making of their Will should be witnessed or approved by a medical practitioner who satisfies themselves of the Testator's testamentary capacity and who records their assessment and findings.  This is known as the ‘golden rule’. 

The ‘golden rule’ does not apply in Scotland but might still be considered good practice in certain circumstances.

Final words

Testamentary capacity is generally assumed, and the Courts will require robust evidence to be satisfied to the contrary.  This is because there is an underlying principle in law that a person is free to do what they wish with their property.  The fact that a Will may be eccentric or, in the eyes of some, plain wrong, does not mean mental capacity will be found lacking.  Testators who instruct experienced Solicitors to advise on and draft their Will can be confident that any challenge to the document is unlikely to succeed.

Specialist Estate Planning Solicitors, Edinburgh

At Murray Beith Murray, we are committed to providing a high-quality service during these unfamiliar times. If this article has raised any questions or you would like assistance in writing or updating a Will; or any other Estate Planning, Power of Attorney or Trusts matter, please complete our contact form or call us on 0131 225 1200 to speak to one of our specialist solicitors.

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