Legal capacity to make a valid will

A person's ability to create a legally valid will may be uncertain where that person's sound judgment is affected by mental disabilities. In order to possess the so-called 'testamentary capacity' to validly create a will, a person must be of sound mind, memory and understanding.

The case of Banks v Goodfellow establishes that a person will have 'testamentary capacity' if, at the time of creating or amending the will, he/she:

• understands the nature of the will and its effects;
• understands  the extent of the property being disposed of by the will;
• comprehends and appreciates the claims of various people under the will; and
• is free from any mental disorder or insane delusion influencing the disposal of his/her assets in a way which would not have been made if his/her mind was sound.