Statutory wills explained: Capacity tests and key principles 

As part of the series ‘Statutory Wills and Recent Updates’, Holly Miéville-Hawkins, Partner in the Court of Protection team at Anthony Gold, draws on insights from Court of Protection solicitor Kathleen Bennet, to explain the key legal principles behind statutory wills. This blog explores what a statutory will is, how it interacts with existing wills, and the different legal tests used to assess capacity.

Understanding statutory wills 

A statutory will is a will authorised by the Court of Protection for an individual who has been assessed as lacking the mental capacity to make or amend a will themselves. Where a person cannot meet the legal threshold to create a valid will, the Court can step in to ensure their estate is distributed in a way that reflects their best interests. 

Statutory wills exist to protect vulnerable individuals and to provide clarity for families and professionals involved in managing their affairs. 

Do statutory wills override previous wills? 

If the Court of Protection approves a statutory will, that document automatically becomes the person’s sole valid will. Any previous wills are revoked. This means an individual cannot have both a statutory will and their own personally executed will running alongside one another. Once a statutory will is in place, it takes full precedence. 

The traditional test for making a will: Banks v Goodfellow 

The legal test for deciding whether someone has capacity to make a will originates from the landmark case Banks v Goodfellow (1870). Despite its age, it remains the foundation of testamentary capacity in England and Wales. 

Under Banks v Goodfellow, a person must: 

• Understand the nature and effect of making a will 

• Understand broadly the extent of their property 

• Know the potential beneficiaries and those who may have a claim on their estate 

• Be free from “insane delusions” that influence their decisions 

This test focuses on the individual’s ability to comprehend the immediate implications of their decisions about their estate. 

Why the Court of Protection uses a different capacity test

When considering whether a statutory will is required, the Court of Protection applies the capacity framework set out in sections 2 and 3 of the Mental Capacity Act 2005. This test is broader and more detailed than Banks v Goodfellow. 

To have capacity under the Mental Capacity Act, a person must be able to: 

• Understand the information relevant to making a will, including reasonably foreseeable circumstances 

• Retain that information long enough to make a decision 

• Weigh up the information as part of the decision-making process 

• Communicate their decision by any means 

Because this test considers wider foreseeable consequences and not just the immediate effects, it can be more demanding than the Banks v Goodfellow criteria. 

When someone meets one test but not the other 

It is possible for someone to satisfy the Banks v Goodfellow test, meaning they can legally make their own will, while lacking capacity under the Mental Capacity Act. 

The difference arises because the Mental Capacity Act requires a person to consider broader implications and consequences of will making, while Banks v Goodfellow focuses on essential understanding of the will itself. 

This distinction can lead to situations where an individual’s personally executed will is valid, yet the Court of Protection may still need to consider a statutory will if concerns arise about their wider decision-making capacity. 

The relationship between statutory wills, testamentary capacity and the Mental Capacity Act shows how complex this area can be. Understanding the different capacity tests is essential for families, practitioners and anyone navigating the Court of Protection process.

Differences in the burden of proof 

Another important distinction between the two capacity tests concerns the burden of proof. Under Banks v Goodfellow, if there is any suggestion that a person may lack capacity, the burden falls on the person seeking to demonstrate that the individual does have testamentary capacity. In practice, this means that the person wishing to uphold the will must prove that the testator met the Banks v Goodfellow criteria at the time the will was made. 

Under the Mental Capacity Act, the position is reversed. Here, the burden of proof lies with the person asserting that an individual lacks capacity. They must provide evidence showing that the individual does not meet the criteria under sections 2 and 3 of the Act. 

This contrast highlights yet another way in which the two tests operate differently. Although both relate to a person making a will during their lifetime, they can be applied only months apart and still lead to different conclusions. Understanding who carries the burden of proof under each framework is therefore essential when assessing capacity in the context of statutory wills. 

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