The Importance Of Ensuring Testamentary Capacity When Professionally Preparing A Will For A Client

Challenging A Will

The Boast v Billardi & Ors [2022] case questions the validity of a Will at a time when the deceased’s capacity was possibly compromised and whether the solicitors acted accordingly in determining his capacity when agreeing to prepare the Will.

Boast v Billardi & Ors [2022]

Case background

Mr Edward Henry Charles Smith died on 24th January 2016 aged 97. He did not have a spouse or any children.

The deceased created a Will on 15th March 2006 in which Gavin Boast, the deceased’s great nephew, and the claimant, in this case, was the sole executor and beneficiary of the estate.

On 11th June 2013, Mr Smith created a new Will which appointed Gavin the sole executor and granted him a legacy of £15,000, there was another legacy of £3,000 and the residuary of the estate left to his sisters in equal shares absolutely, although both of the sisters predeceased him and the residue then passed to the deceased’s nephews and nieces under the rules of intestacy.

It’s important to note, both Wills were professionally prepared by the same firm of solicitors.

Questions arose surrounding the validity of the 2013 Will when Gavin, the Claimant, filed a claim against the Defendants stating the Will was not validly executed based on the fact the deceased has been diagnosed with dementia prior to executing the Will and this had not been checked properly by the Solicitors at the time.


Mr Smith had a close relationship with Gavin whereby he executed an Enduring Power of Attorney in favour of Gavin on the same day he executed the 2006 Will.

Until 2011 Mr Smith had lived in his own home at which point he became sick and ended up living with his nephew (and defendant in the case) Terry, and his wife.

In February 2012 Mr Smith was visited by his GP who noted he was “increasingly confused, paranoid ideas. Lucid but disorientated in time and space. Fixed idea about people preventing him from having tablets.”

Mr Smith was then diagnosed with Dementia complicated by some psychotic thinking on 5th March 2012.

From March 2012 to June 2013 Mr Smith was hospitalised on several occasions and seen by medical professionals in the interim who reported periods of paranoid delusions especially in connection with Terry’s Wife, whom he assumed was an Asian lady taking over the industrial estate in which he was living with Terry. The deceased was unable to recognise Terry’s wife as a person he recognised.

After a medical examination of Mr Smith it was also reported in March 2012:

“His short-term memory would normally appear pretty good and mentally he would appear to be quite sharp. He is not normally repetitive of questions or conversation.”

Throughout this period Mr Smith made several attempts to cancel the EPA and change his Will.

On the 16th May 2012, he was seen again by a medical professional who stated the following:

“… it is my opinion that this capacity to make decisions around his finances is already significantly impaired and that the Enduring Power of Attorney should probably be registered with the Court of Protection.

I would have similar concerns about his testamentary capacity. Although he is aware that he owns a cottage in Rumburgh and has some savings, he believes that his savings are in the order of £27,000 when in fact I believe they are nearer £140,000. More importantly, he continues to maintain various persecutory delusions that could influence his decisions about how he disposes of his property in his Will. For these reasons, I do not believe that he has testamentary capacity and I think it is extremely unlikely that he would ever regain that testamentary capacity.”

With this in mind, Mr Smith’s solicitors wrote to Gavin in May 2012 advising him he was obliged to register the EPA if Mr Smith was becoming or already was mentally incapable.

On previous requests to change his Will Mr Smith’s solicitors advised him he needed to be seen by a doctor to have his capacity assessed before they were able to produce a new Will for him.

On the 14th June 2013, the solicitor attended Mr Smith’s home. Mr Smith informed his solicitor the doctor has been to see him earlier in the day. This was not further questioned by the solicitor.

Mr Smith handed to his solicitor a signed draft Will dated 11th June 2013. The Will had been executed by 3 witnesses. At this point Mr Smith assured his solicitor he was of sound mind, although it was noted in the following attendance notes prepared by the solicitor:

“1. He clearly has a fixed view about foreign immigrants and probably coloured people. He is under the impression that the industrial site is actually owned by a foreign lady and feels she is making considerable money from all concerned. Mr Smith is rather fixated on this although it does not appear to alter his judgment as to other matters.

2. If a Doctor about 2 years ago had not cast doubts about Mr Smith’s mental competency, I would have felt that he was sufficiently competent to make a Will, he was able to discuss the matter with him and clearly had approved and executed the Will that had been sent to him. Mr Smith was perfectly able to read and understand what was in front of him.

3. Mr Smith told several stories about members of his family etc. (as many a 95-year-old would do) and everything in this respect was perfectly rational. Thus apart from his fixation about the foreign lady mentioned above, I really felt that he was still mentally competent though physically frail.”

At Court, it was noted no further steps were taken to find out whether Mr Smith understood what his estate comprised of.

It was held by the Court, upon considering the Banks v Goodfellow (1870) test that Mr Smith lacked capacity from May 2012 when he was assessed by the medical professional and therefore testamentary capacity was not present at the time the Will was created in June 2013.

Under the Banks v Goodfellow test, the person making a Will must:

  • understand the nature of the Will and its effect;
  • have some idea of the extent of the property of which they are disposing under the Will; and
  • be aware of the persons for whom the person making the Will would usually be expected to provide (even if he chooses not to) and be free from any delusion of the mind that would cause him a reason not to benefit those people.

The Court’s decision

It was also held Mr Smith’s solicitor had a responsibility to investigate his capacity at the time of executing the Will and even though there is evidence to show the solicitor questioned his capacity, it was not followed up with an assessment by a medically qualified practitioner.

Therefore the Will created in 2013 failed and the 2006 Will was declared Mr Smith’s last valid Will.


To summarise, it’s imperative a solicitor considers closely the Banks v Goodfellow test when a testator’s capacity is in question and gather sufficient evidence of all the parts of that test as need be. Failing to do so can render a Will invalid.

How can we help

Kirria Hearn is a Trainee Solicitor in our expert Dispute Resolution Team.

For more information regarding the subjects discussed in this article, please contact Kirria or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.

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