The Court of Appeal has dismissed an appeal from the High Court, clarifying that the test for testamentary capacity is the testator’s understanding, not his memory. The case of Simon v Byford & Ors3 also confirmed that testamentary capacity only requires an understanding of the immediate consequences of a disposition, not all of the indirect consequences.

Common law

The test of capacity needed to execute a valid Will was established in the case of Banks v Goodfellow (1870):

  • Understanding the nature of making a Will and its effects
  • Understanding the extent of the disposed property
  • Comprehension and appreciation of the claims to which he ought to give effect
  • No disorder of the mind that perverts the testator’s sense of right or prevents the exercise of his natural faculties in disposing of his property by Will

For a Will to be valid, the testator must also know and approve its contents, in addition to satisfying the above common law test of capacity.


On 18 December 2005, the testatrix executed a Will in front of her family members at her 88th birthday party. She was a woman found to have mild to moderate dementia. In this Will, she divided her estate equally between all of her children. But in previous Wills, she had favoured one son named Robert over the other children. The earlier Wills had specified, in particular, that Robert would receive a flat and a controlling interest of shares in the family company.

Robert challenged the 2005 Will in the High Court on the basis that his mother had lacked testamentary capacity; he was unsuccessful. The judge found on the facts that although the testatrix could not remember the reasons for favouring Robert previously, he was satisfied that she had sufficient testamentary capacity on the day she executed her Will.

Robert then appealed to the Court of Appeal. His main argument was that, when she made the 2005 Will, his mother was not able to remember her reasons for preferring Robert in previous Wills. He argued that the judge should have therefore found that his mother lacked testamentary capacity when making the later Will.


The Court of Appeal dismissed the appeal. The judge had found that the testatrix had forgotten the terms of and reasons for her earlier Will, although she knew that the previous Wills in some way benefited Robert more. But importantly, she had chosen not to review the previous Wills and discover those reasons. At the time of making the latest Will, she had made the conscious decision to benefit her children equally, which was a perfectly rational decision.

A well-functioning memory is part of overall mental health and linked to testamentary capacity and the testatrix may have suffered from some dementia. But it was one of her “good days” and, on that day, she met the established common law Banks v Goodfellow criteria for testamentary capacity.

This judgment demonstrates the distinction between memory and testamentary capacity.