Jurisdiction(s):
United Kingdom

Related legal acts

Key definition

Testamentary capacity definition

What does Testamentary capacity mean? Testamentary capacity is the mental ability required to make a valid will. In practice, the testator must, when giving instructions and executing the will, be able to: understand that they are making a will and its effects; broadly comprehend the nature and extent of their estate; recognise and evaluate the claims of those who might reasonably expect to benefit; and be free from any mental disorder or delusion that influences their dispositions. In England & Wales and Northern Ireland, this is a common law test from Banks v Goodfellow; Ireland applies the same principles through case law alongside the Succession...

Capacity under the MCA 2005: Marriage/Civil Partnership, Cohabitation, Sexual Relations and Contraception—Tests, Case Law and Court of Protection Jurisdiction (England and Wales)

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Practice notes

Determining a person’s ability to marry, cohabit, consent to sexual relations, and agree to contraception involves matters that are highly sensitive and intensely personal, engaging individuals’ Article 8 rights to a personal and family life. This Practice Note first sets out the overall legal framework for capacity assessment under the Mental Capacity Act 2005 (MCA 2005), and then considers the tailored tests developed by the courts for each issue, reflecting the careful balance between protecting vulnerable people and promoting self-determination. With a view to enabling vulnerable adults with learning disabilities and other cognitive difficulties to enjoy the advantages of married life and/or a sexual relationship, the applicable capacity tests have intentionally been pitched at a low threshold and are widely thought to require a lesser level of capacity than, for example, the standard for making a will.

Capacity: General Principles

The fundamental legal principles to apply when deciding whether a person has capacity are contained in the MCA 2005 and the MCA 2005 Code of practice...

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Web page updated on 21/05/2026

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