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Mental Capacity Test Reforms: Assessing Testamentary Capacity Under the MCA (Proposed)

· 21 min

Executive Summary

The Law Commission's May 2025 Modernising Wills report recommends replacing the 155-year-old Banks v Goodfellow test for testamentary capacity with the Mental Capacity Act 2005 framework, proposing a single unified standard across all capacity assessments. This recommendation arrives against a backdrop of conflicting judicial interpretation: Leonard v Leonard [2024] EWHC 321 (Ch) confirmed Banks v Goodfellow remains the definitive test, while Baker v Hewston [2023] proposed a pragmatic reconciliation treating the two tests as compatible. With contentious probate caveats rising 56% since 2019 (reaching 11,362 applications in 2024) and dementia diagnoses exceeding 512,000 in England, practitioners face immediate pressure regardless of legislative reform. This article examines the current dual-test anomaly, analyses the practical differences between tests, evaluates the Law Commission's Code of Practice recommendation, and provides practitioners with assessment frameworks for the transitional period.

1. Introduction: The Dual-Test Anomaly

The assessment of testamentary capacity in England and Wales operates under an anomalous dual-test regime that has persisted for nearly two decades since the Mental Capacity Act 2005 came into force.1 When practitioners assess capacity for property transactions, healthcare decisions, or financial management, the MCA 2005 framework applies. Yet when those same practitioners turn to will-making, the Victorian-era Banks v Goodfellow test continues to govern.2

This bifurcation creates genuine practical difficulties. A testator may simultaneously possess capacity to manage complex financial affairs under the MCA while facing challenge to their testamentary capacity under the common law standard. The Courts of Protection and the Chancery Division apply different frameworks to assess the same cognitive faculties, creating what the Law Commission has termed an "unprincipled and confusing" distinction.3

The demographic context heightens the urgency. NHS England data from December 2025 records 512,466 patients with a dementia diagnosis in England alone, with a mean age at diagnosis of 82.1 years.4 The Alzheimer's Society projects 1.4 million people living with dementia by 2040.5 Concurrently, contentious probate applications have reached record levels, with caveat applications rising 56% from 7,268 in 2019 to 11,362 in 2024.6

Against this backdrop, the Law Commission's May 2025 recommendation to replace Banks v Goodfellow with the MCA test represents the most significant proposed reform to testamentary capacity law since 1870.7 The Government welcomed the recommendations, though no legislative timetable has been confirmed as of January 2026.8 Practitioners must therefore navigate a period of uncertainty, applying current law while preparing for potential reform.

This article advances the thesis that practitioners cannot wait for legislative action. The practical differences between the tests have been overstated; the real risk lies in procedural deficiencies rather than substantive test selection. Whether Parliament enacts reform or retains the common law position, rigorous assessment protocols remain the primary defence against professional negligence claims and contentious probate challenges.

The common law test for testamentary capacity derives from Banks v Goodfellow (1870), where Cockburn CJ articulated four requirements that have governed will-making for over 150 years.9 To execute a valid will, a testator must demonstrate:

First, the testator must understand the nature of making a will and its effects. This requires comprehension that the will is a document disposing of property upon death, that it is revocable, and that it takes effect only upon death. In practice, the assessor should establish whether the testator grasps that the will replaces any earlier testamentary instrument, that it has no effect during their lifetime, and that it can be changed at any point while capacity persists.

Second, the testator must understand the extent of the property being disposed. Complete precision is not required; a general appreciation of the nature and approximate value of assets suffices. A testator who owns a residential property, savings, and a pension portfolio need not recite exact figures, but should demonstrate awareness of the broad categories of assets and their relative significance within the overall estate.

Third, the testator must comprehend and appreciate the claims to which they ought to give effect. This requires awareness of persons who might reasonably expect to benefit, whether by kinship, dependency, or moral obligation, and an ability to weigh competing claims. The assessor should explore whether the testator can identify close family members and dependants, articulate reasons for any exclusions, and demonstrate rational deliberation rather than confusion or indifference about who has a claim on their bounty.

Fourth, the testator must be free from any disorder of the mind that perverts their sense of right or prevents the exercise of natural faculties in distributing their estate.

The fourth limb has generated considerable jurisprudence, particularly regarding the concept of "insane delusions." In Clitheroe v Bond [2021], Mrs Justice Falk held that affective disorders, such as complex grief reactions, can impair capacity through poisoning of the mind, and that a delusion must be "irrational and fixed in nature" to invalidate testamentary capacity.10

Critically, Leonard v Leonard [2024] confirmed Banks v Goodfellow as the sole standard for testamentary capacity in probate proceedings.11 Mrs Justice Joanna Smith DBE found Dr Leonard lacked capacity under limbs 1 and 4, and issued severe criticism of the will drafter (a chartered tax advisor) for showing "total lack of awareness" of capacity issues. The evidence provided by the drafter was described as "worthless" for capacity assessment purposes.12

The burden of proof under Banks v Goodfellow operates asymmetrically. A testator is presumed capable until "real doubt" is raised by circumstances such as advanced age, serious illness, or unusual testamentary provisions. Once such doubt arises, the burden shifts to those propounding the will to prove capacity on the balance of probabilities.13

3. The Mental Capacity Act 2005 Framework

The Mental Capacity Act 2005 established a statutory framework for capacity assessment that applies across healthcare, financial, and welfare decisions. Its core principles, set out in section 1, represent a philosophical departure from the common law approach.14

Section 1(2) establishes an unqualified presumption of capacity: "A person must be assumed to have capacity unless it is established that he lacks capacity." Unlike the common law burden shift upon "real doubt," the MCA presumption persists unless positively displaced by evidence of incapacity.15

Section 1(3) imposes a support principle requiring that "all practicable steps" be taken to help a person make their own decision before treating them as incapable. Section 1(4) protects autonomy by providing that capacity cannot be denied "merely because he makes an unwise decision."16

The functional test appears in sections 2 and 3. Section 2 requires an "impairment of, or a disturbance in the functioning of, the mind or brain" as a diagnostic threshold. Section 3 specifies that a person is unable to make a decision if they cannot:

  • Understand the information relevant to the decision;
  • Retain that information;
  • Use or weigh that information as part of the decision-making process; or
  • Communicate the decision.17

"Relevant information" includes reasonably foreseeable consequences, and the Act specifically provides that brief retention does not prevent capacity. Information must be presented in a manner appropriate to the person's circumstances.18

The MCA framework is accompanied by a Code of Practice issued under section 42, which provides detailed guidance on capacity assessment procedures.19 This infrastructure of statutory guidance is notably absent for testamentary capacity under Banks v Goodfellow, a gap the Law Commission's proposals specifically address.

4. The Reconciliation Debate: Baker v Hewston

The apparent conflict between the two frameworks reached its most thorough judicial analysis in Baker v Hewston [2023].20 HHJ Tindal, who sits in the Court of Protection and thus works regularly with both frameworks, attempted to reconcile what he termed the "polarised debate" between Chancery and Court of Protection practitioners.

The judge identified a serious conceptual problem: if the tests differ substantively, the same testator could possess capacity under one test but lack it under the other. This would create an impossible situation where no valid will could be executed, as the testator would lack capacity under at least one standard.

Baker v Hewston proposed a mapping exercise to reconcile the frameworks. The first three limbs of Banks v Goodfellow can be treated as "relevant information" under MCA section 3: understanding the nature of a will, understanding property extent, and appreciating claims are all information relevant to the will-making decision. The fourth Banks limb, concerning disorder of the mind, maps onto the MCA section 2 diagnostic threshold requiring impairment or disturbance of mind or brain.21

Under this reconciliation, a practitioner assessing testamentary capacity could apply MCA sections 2-3 as a cross-check while maintaining Banks v Goodfellow as the substantive legal test. The MCA principles, particularly the presumption of capacity and the support principle, would inform the assessment without displacing the common law framework.22

However, Leonard v Leonard [2024] subsequently confirmed Banks v Goodfellow as the definitive and sole test for probate proceedings, acknowledging only that the MCA can provide a "useful cross-check."23 The reconciliation proposed in Baker v Hewston remains a practitioner tool rather than binding legal authority. The Law Commission's recommendation represents an attempt to resolve this tension through primary legislation.

5. The Law Commission's Recommendations

The Law Commission published its Modernising Wills report on 16 May 2025 (HC 861), culminating a project that commenced with a consultation paper in July 2017.24 Among its 31 recommendations, the capacity test proposal represents perhaps the most substantive change to wills law since the Wills Act 1837.

The Commission recommends that the MCA 2005 sections 2-3 test should replace Banks v Goodfellow for all testamentary capacity assessments. The rationale centres on coherence: there is "no logical justification for two different tests" applying to capacity assessments made by the same practitioner for the same client.25

Crucially, the Commission recommends that a Code of Practice on testamentary capacity should be issued under MCA section 42. Such a Code would bind "anyone preparing a Will or assessing capacity in their role as a professional or for payment." This would create, for the first time, standardised procedural requirements for capacity assessment in will-making.26

The proposed Code would address three critical questions currently lacking authoritative guidance:

  • When formal capacity assessment is required (circumstances triggering enhanced due diligence);
  • Who should conduct assessments (role of medical and psychological professionals); and
  • How assessments should be documented (record-keeping requirements).27

The Government response of May 2025 welcomed the recommendations, with an interim ministerial response due by November 2025 and a full response expected by May 2026.28 As of January 2026, no legislative timetable has been confirmed, and Banks v Goodfellow remains the governing law. The draft Wills Bill published alongside the report would require primary legislation, and Parliamentary time for such reform remains uncertain.29

Practitioners should note that even if enacted, the MCA test would apply prospectively to wills executed after commencement. Will disputes concerning instruments executed before reform would continue to be assessed under Banks v Goodfellow, meaning the common law framework will remain relevant for decades in contentious probate matters.30

6. Practical Differences Between the Tests

While academic commentary has emphasised the distinction between the two frameworks, practitioners should assess the practical implications with precision. The differences, though real, may be less significant than procedural failings.

The Presumption of Capacity

The most substantive difference lies in the treatment of presumptions. Under MCA section 1(2), capacity is presumed unless established otherwise on the balance of probabilities. This presumption does not shift; the party asserting incapacity bears the burden throughout.31

Under Banks v Goodfellow, capacity is presumed only until "real doubt" arises. Once suspicious circumstances are present (advanced age, serious illness, unusual provisions, involvement of beneficiaries in preparation), the burden shifts to those propounding the will.32 In contentious probate, this burden shift frequently determines outcomes.

For prospective assessment, this difference affects documentation strategy. Under an MCA-type approach, practitioners should document why any concerns about capacity have been positively displaced. Under the common law, documentation should address whether circumstances give rise to "real doubt" and, if so, what evidence establishes capacity.

The Scope of Relevant Information

MCA section 3 frames capacity around "relevant information," including reasonably foreseeable consequences. Banks v Goodfellow frames the inquiry around specific limbs. Baker v Hewston demonstrated that the first three Banks limbs can be mapped onto the MCA's relevant information requirement.33

In practice, a testator assessed under either framework must demonstrate understanding of: what a will does; what property they own; and who has claims on their bounty. The framing differs, but the substantive inquiry is largely congruent.

The Diagnostic Threshold

MCA section 2 requires "impairment of, or a disturbance in the functioning of, the mind or brain." Banks v Goodfellow's fourth limb requires freedom from "disorder of the mind" that perverts judgment.34

The MCA formulation is broader, encompassing temporary disturbances such as intoxication or concussion alongside permanent conditions. The common law test focuses on whether any disorder perverts moral sense or prevents rational deliberation. In practice, both tests require identifying a clinical or functional impairment that causally affects decision-making.

The Support Principle

MCA section 1(3) requires all practicable steps to help a person make their own decision. No equivalent statutory duty exists under Banks v Goodfellow, though good practice would suggest similar accommodations.35

The Law Commission's proposed Code of Practice would likely require documented efforts to support testamentary decision-making: choosing appropriate times, providing information in accessible formats, and allowing sufficient time for deliberation.

Arguments Against MCA Adoption

The recommendation has not attracted universal support. Critics have raised the retrospective assessment problem: when courts assess testamentary capacity after a testator's death, the MCA's support principle (requiring "all practicable help" before treating someone as incapable) cannot meaningfully be applied, since no assistance can be given to a deceased person.36 Some contentious probate specialists have also argued that the MCA's stronger presumption of capacity, which does not shift upon "real doubt," could make it harder for challengers to contest dubious wills where the testator was subject to undue influence or subtle cognitive decline.37 These concerns underscore the importance of robust procedural safeguards regardless of which substantive test ultimately governs.

7. Risk Mitigation Protocols for the Transitional Period

Regardless of legislative reform, current case law demands enhanced assessment protocols. Leonard v Leonard's criticism of will preparers who showed "total lack of awareness" of capacity issues should alert practitioners to existing negligence exposure.38

The Golden Rule

Kenward v Adams (1975) established what practitioners commonly term the "Golden Rule": for aged testators or those who have suffered serious illness, "the making of a will...ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding."39

Critically, Re Key [2010] clarified that Golden Rule compliance does not guarantee validity, nor does non-compliance prove invalidity. The rule's purpose is "to assist in the avoidance of disputes, or at least in the minimisation of their scope."40 The Golden Rule represents best practice guidance, not a binding legal requirement.

When to Obtain Medical Assessment

Red flags warranting enhanced due diligence include:

  • Age above 75, particularly with any cognitive concerns;
  • Recent serious illness, hospitalisation, or surgery;
  • Known dementia diagnosis or cognitive impairment;
  • Significant departure from earlier testamentary intentions;
  • Beneficiaries involved in will preparation or instruction-taking;
  • Urgency or pressure to complete the will quickly;
  • Complex estate or family circumstances requiring sophisticated reasoning;
  • Bereavement within preceding months (per Clitheroe v Bond).41

The British Psychological Society's 2024 guidance recommends that Banks v Goodfellow should be applied when assessing living persons, "with an eye to MCA principles."42 For retrospective assessment (contested probate), only Banks v Goodfellow applies.

Documentation Requirements

Defensible practice requires contemporaneous documentation of:

  • The circumstances prompting capacity consideration;
  • Observations supporting or undermining capacity under each Banks limb;
  • Any medical or psychological assessment obtained;
  • The testator's responses to questions about assets, beneficiaries, and testamentary intentions;
  • The assessment of whether the testator understood explanations provided;
  • Any accommodations or support provided to facilitate understanding;
  • The practitioner's overall assessment and reasoning.43

The failings identified in Leonard v Leonard illustrate what constitutes inadequate documentation. The will drafter in that case maintained no attendance note recording the testator's responses to capacity-related questions, kept no record of the testator's understanding of the nature and effect of the will, and failed to document any assessment of the testator's cognitive state at the time of execution. The court found the drafter's subsequent oral evidence about the meeting was unreliable precisely because no contemporaneous record existed.44 Attendance notes should be sufficiently detailed to demonstrate, years later, the specific questions asked and answers received at the time of will execution.

Such documentation should be retained indefinitely, as capacity challenges may arise decades after execution.

Interdisciplinary Collaboration

Medical professionals assessing testamentary capacity should understand that the legal test differs from clinical capacity assessments. The Medical Defence Union provides guidance for doctors asked to witness wills or provide capacity confirmation letters.45 Solicitors instructing medical assessors should specify that Banks v Goodfellow criteria are required, providing a structured checklist addressing each limb.

The BMA/Law Society joint publication Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers (2022) provides checklists for capacity assessment, though practitioners should verify whether updated editions have been published.46

8. Preparing for Reform

While Banks v Goodfellow remains the law, prudent practice anticipates potential reform. Practitioners may adopt protocols that satisfy both frameworks simultaneously, ensuring defensibility under current law while positioning for seamless transition should reform be enacted.

A dual-framework assessment template should structure the capacity evaluation in two stages. First, the practitioner records the assessment against each of the four Banks v Goodfellow limbs, which remains the legally binding test. Second, the practitioner maps those findings onto the MCA sections 2-3 functional test, noting any areas where the two frameworks produce divergent conclusions. This mapping exercise, derived from Baker v Hewston's reconciliation approach, creates a comprehensive record that satisfies both the current common law and any future statutory test.47

Specific protocol elements for dual-framework compliance include:

  • Apply the MCA presumption of capacity as a starting point, documenting positive evidence of capacity rather than merely the absence of incapacity;
  • Provide support and accommodations as if the MCA support principle applied, recording what steps were taken to assist the testator's understanding;
  • Record the assessment against both the four Banks limbs and the MCA functional test in a single structured document;
  • Maintain records demonstrating compliance with whatever Code of Practice may emerge, including the circumstances triggering the assessment, the professional qualifications of the assessor, and the methodology employed;
  • Retain a signed and dated summary confirming the practitioner's overall capacity determination with reasons.

Firms should consider developing standardised capacity assessment forms that incorporate both frameworks, supported by internal training on the distinctions between the tests and the emerging case law. Such investment in procedural infrastructure provides protection regardless of whether Parliament acts on the Law Commission's recommendations.

Conclusion

The Law Commission's recommendation to replace Banks v Goodfellow with the MCA 2005 test for testamentary capacity addresses a genuine anomaly in English law. A single unified standard across all capacity assessments would eliminate the conceptual confusion that has generated conflicting case law and practitioner uncertainty.

However, practitioners should not await legislative reform to enhance assessment protocols. The current demographic trajectory, with over half a million dementia diagnoses and contentious probate applications at record levels, creates immediate professional risk. Leonard v Leonard's severe criticism of will preparers demonstrates that negligence exposure exists under current law.

The practical differences between the tests, while real, are less significant than procedural rigour. A practitioner who follows the Golden Rule, obtains appropriate medical assessment, documents the capacity analysis thoroughly, and retains comprehensive records will satisfy both frameworks. The Law Commission's proposed Code of Practice, if enacted, would standardise what constitutes defensible practice; in its absence, the principles it would codify remain best practice guidance.

Whether assessed under Banks v Goodfellow or the MCA, testamentary capacity turns on the same fundamental question: could this testator, at the moment of execution, make and communicate an informed decision about the disposition of their property? The answer lies in rigorous assessment, not in which legal test applies.

CPD Declaration

Estimated Reading Time: 20 minutes Technical Level: Advanced Practice Areas: Private Client, Wills and Probate, Contentious Probate, Elderly Client Care

Learning Objectives

Upon completing this article, practitioners will be able to:

  1. Distinguish between the Banks v Goodfellow four-limb test and the MCA 2005 sections 2-3 functional test for capacity assessment
  2. Apply the Baker v Hewston reconciliation framework to map Banks limbs onto MCA requirements
  3. Evaluate when circumstances require enhanced capacity due diligence under the Golden Rule
  4. Formulate documentation protocols that satisfy both current common law requirements and anticipated reform standards

SRA Competency Mapping

  • A2: Maintain the level of competence and legal knowledge needed to practise effectively
  • B3: Identify and apply the law to factual situations
  • B4: Recognise when further information or specialised expertise is needed

Reflective Questions

  1. How would the adoption of an MCA-based capacity test affect current intake procedures for elderly or vulnerable clients in your practice?
  2. What documentation enhancements could be implemented immediately to address the criticisms raised in Leonard v Leonard regarding "worthless" capacity evidence?
  3. How might interdisciplinary relationships with medical assessors be strengthened to ensure Banks v Goodfellow criteria are properly addressed in capacity reports?

Professional Disclaimer

The information presented reflects the regulatory and legislative position as of 2026-01-28. Regulations, tax rules, and professional guidance are subject to change. Readers should independently verify all information before acting and seek advice from appropriately qualified solicitors, financial advisors, or other professionals for their specific circumstances.

Neither WUHLD nor the author accepts liability for any actions taken or decisions made based on the content of this article. Professional readers are reminded of their own regulatory obligations and duty of care to their clients.

Footnotes

Footnotes

  1. Mental Capacity Act 2005. https://www.legislation.gov.uk/ukpga/2005/9/contents ↩

  2. Banks v Goodfellow (1870) LR 5 QB 549 ↩

  3. Law Commission, Modernising Wills (HC 861, May 2025), para 3.42. https://lawcom.gov.uk/publication/modernising-wills-final-report/ ↩

  4. NHS England, Primary Care Dementia Data (December 2025). https://digital.nhs.uk/data-and-information/publications/statistical/primary-care-dementia-data/december-2025 ↩

  5. Alzheimer's Society, Dementia UK Report (2024). https://www.alzheimers.org.uk/about-us/policy-and-influencing/dementia-uk-report ↩

  6. HMCTS Probate Registry Caveat Data (Q4 2024); Today's Wills and Probate, 'Contentious probate up by as much as 56%'. https://todayswillsandprobate.co.uk/contentious-probate-up-by-as-much-as-56-according-to-freedom-of-information-request/ ↩

  7. Law Commission, Modernising Wills (HC 861, May 2025). https://lawcom.gov.uk/publication/modernising-wills-final-report/ ↩

  8. Law Commission, Wills Project Page. https://lawcom.gov.uk/project/wills/ ↩

  9. Banks v Goodfellow (1870) LR 5 QB 549 ↩

  10. Clitheroe v Bond [2021] EWHC 1102 (Ch). https://www.bailii.org/ew/cases/EWHC/Ch/2021/1102.html ↩

  11. Leonard v Leonard [2024] EWHC 321 (Ch). https://www.bailii.org/ew/cases/EWHC/Ch/2024/321.html ↩

  12. Leonard v Leonard [2024] EWHC 321 (Ch), para 156 ↩

  13. Re Key (Deceased) [2010] EWHC 408 (Ch). https://www.bailii.org/ew/cases/EWHC/Ch/2010/408.html ↩

  14. Mental Capacity Act 2005, s.1. https://www.legislation.gov.uk/ukpga/2005/9/section/1 ↩

  15. Mental Capacity Act 2005, s.1(2) ↩

  16. Mental Capacity Act 2005, ss.1(3)-(4) ↩

  17. Mental Capacity Act 2005, ss.2-3. https://www.legislation.gov.uk/ukpga/2005/9/section/2 ↩

  18. Mental Capacity Act 2005, s.3(2)-(4) ↩

  19. Mental Capacity Act 2005 Code of Practice. https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice ↩

  20. Baker v Hewston [2023] EWHC 1145 (Ch). https://www.bailii.org/ew/cases/EWHC/Ch/2023/1145.html ↩

  21. Baker v Hewston [2023] EWHC 1145 (Ch), paras 102-108 ↩

  22. Farrer & Co, 'Testing the tests: Banks v Goodfellow versus s2-3 MCA 2005 in Baker v Hewston' (2023). https://www.farrer.co.uk/news-and-insights/testing-the-tests-banks-v-goodfellow-versus-s2-3-mental-capacity-act-2005-in-baker-v-hewston-2023/ ↩

  23. Leonard v Leonard [2024] EWHC 321 (Ch), para 89 ↩

  24. Law Commission, Modernising Wills (HC 861, May 2025). https://lawcom.gov.uk/publication/modernising-wills-final-report/ ↩

  25. Law Commission, Modernising Wills (HC 861, May 2025), para 3.44 ↩

  26. Law Commission, Modernising Wills (HC 861, May 2025), paras 3.78-3.82 ↩

  27. Law Commission, Modernising Wills (HC 861, May 2025), paras 3.83-3.91 ↩

  28. Law Commission, Wills Project Page. https://lawcom.gov.uk/project/wills/ ↩

  29. Law Commission, Modernising Wills Volume II: Draft Bill (HC 861-II, May 2025). https://lawcom.gov.uk/publication/modernising-wills-final-report-volume-ii-draft-bill-for-a-new-wills-act/ ↩

  30. Law Commission, Modernising Wills (HC 861, May 2025), paras 3.95-3.98 ↩

  31. Mental Capacity Act 2005, s.1(2) ↩

  32. Barry v Butlin (1838) 2 Moo PC 480 ↩

  33. Baker v Hewston [2023] EWHC 1145 (Ch), para 105 ↩

  34. Banks v Goodfellow (1870) LR 5 QB 549; Mental Capacity Act 2005, s.2 ↩

  35. Mental Capacity Act 2005, s.1(3) ↩

  36. Law Commission, Modernising Wills (HC 861, May 2025), paras 3.50-3.55; Herbert Smith Freehills, 'The correct test for testamentary capacity' (2021). https://www.hsfkramer.com/notes/pwtd/2021-06/the-correct-test-for-testamentary-capacity-banks-v-goodfellow-or-the-mental-capacity-act ↩

  37. Farrer & Co, 'Testing the tests: Banks v Goodfellow versus s2-3 MCA 2005 in Baker v Hewston' (2023). https://www.farrer.co.uk/news-and-insights/testing-the-tests-banks-v-goodfellow-versus-s2-3-mental-capacity-act-2005-in-baker-v-hewston-2023/ ↩

  38. Leonard v Leonard [2024] EWHC 321 (Ch), para 156 ↩

  39. Kenward v Adams (1975) The Times, 29 November ↩

  40. Re Key (Deceased) [2010] EWHC 408 (Ch), para 7 ↩

  41. Clitheroe v Bond [2021] EWHC 1102 (Ch); British Psychological Society, A Brief Guide to Assessing Testamentary Capacity (2024) ↩

  42. British Psychological Society, A Brief Guide to Assessing Testamentary Capacity (2024). https://www.bps.org.uk/guideline/brief-guide-assessing-testamentary-capacity ↩

  43. Law Society, Wills and Inheritance Quality Scheme (WIQS). https://www.lawsociety.org.uk/topics/private-client/wills-and-inheritance-quality-scheme ↩

  44. Leonard v Leonard [2024] EWHC 321 (Ch), paras 148-156 ↩

  45. Medical Defence Union, An Introduction to Testamentary Capacity. https://www.themdu.com/guidance-and-advice/guides/an-introduction-to-testamentary-capacity ↩

  46. BMA/Law Society, Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers (4th edn, 2022) ↩

  47. Baker v Hewston [2023] EWHC 1145 (Ch), paras 102-108; Law Commission, Modernising Wills (HC 861, May 2025), paras 3.42-3.44 ↩