Bishop & Sewell

If the validity of a Will is challenged, the applicant often seeks to claim that the testator lacked the requisite testamentary capacity to execute a Will.  The relevant test for testamentary capacity was set out in the case of Banks v Goodfellow [1870], which requires that the testator:

  1. Must appreciate the nature and consequences of making a Will;
  2. Must understand the extent of their property;
  3. Should consider any moral claims to their estate; and
  4. Must not be affected by any disorder of mind or “insane delusion”.


If a Will is professionally drafted, the person drafting should give consideration to the testator’s capacity. If there are any concerns, the testator should be assessed by a doctor to confirm they have sufficient capacity to make a Will.  This is referred to as the “golden rule” and should be followed to ward off any potential challenges to the validity of the Will.  However, despite any safeguards, those that knew the testator can still have concerns about the testator’s capacity at the time the Will was drafted, and they may seek to challenge the validity of the will on that basis.

If such a challenge is made and the matter comes before the Court, provided the will is duly executed and appears rational, then the Court will presume the testator had capacity, and it will then be for the individual challenging the validity of the will to prove that the testator lacked capacity.  If the challenger is able to establish real doubt as to the testator’s capacity, then the burden of proof will shift back again to the propounder (the individual seeking to admit the Will to probate) to establish capacity. Therefore, all parties will need to have evidence to support their view of the testator’s capacity.

Medical records are vital in assisting the parties in establishing their claim or their defence.  In such circumstances a request can be made to Primary Care Support England (“PCSE”), who hold medical records for deceased individuals, under the Access to Health Records Act 1990 (the “Act”).  The Act restricts those able to access the deceased’s medical health records to either their personal representatives or an individual who has a claim resulting from the death.

It is important to provide PCSE with details of any potential litigation. If a general request is made, then the medical records may not be disclosed or will be redacted due to GDPR rules.

The medical records will show an unbiased, professional opinion of the testator’s mental state and can be used to obtain an expert’s retrospective capacity assessment of the testator if required. If a will is challenged on the basis of lack of testamentary capacity, this expert’s report could well be a deciding factor at trial.

If you have any concerns regarding the validity of a Will, please contact Tiggy Hawkesworth or another member of our Contentious Probate team on 020 7631 4141 or email

Category: Blog, News | Date: 2nd Feb 2022

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