Capacity to Revoke a Will UK (2026): The Test, What Happens When Capacity Is Lost, and Statutory Wills

The legal test for capacity to revoke a will is the same four-part testamentary capacity test as the test for making a will, established in Banks v Goodfellow (1870) LR 5 QB 549 and applied to revocation: (1) THE FOUR-PART BANKS v GOODFELLOW TEST: a person has testamentary capacity (and therefore capacity to revoke) if — at the time of the act of revocation — they: (a) understand the nature of making or revoking a will and its effects: for revocation, this means understanding that revoking the will cancels it and that the estate will then pass either under an earlier valid will (if one exists) or under the intestacy rules. The person must understand what the revocation achieves; (b) understand the extent of the property of which they are disposing: even for revocation, the person must have a general understanding of the value and composition of their estate — what assets exist and broadly who would benefit; (c) comprehend and appreciate the claims of those who might reasonably expect to benefit: the person must be able to consider who might be adversely affected by the revocation (e.g. the beneficiaries under the will being revoked); (d) no disorder of the mind must poison their affections or prevent the exercise of their natural faculties: dementia, delusional disorder, or other conditions that distort judgment may prevent valid revocation even if the person appears to understand the act; (2) THE TEST IS APPLIED AT THE MOMENT OF REVOCATION: capacity is assessed at the specific time the revocation is made. A person may have fluctuating capacity — they may lack capacity at some times but have sufficient capacity during periods of lucidity. A revocation made during a lucid interval, when the four-part test is satisfied, is valid. Evidence of capacity at that specific time is therefore critical; (3) THE BURDEN OF PROOF: where a revocation is later challenged, the person challenging it bears the initial burden of proving lack of capacity. However, where there is clear evidence of pre-existing incapacity (e.g. a diagnosis of advanced dementia), the presumption may shift — requiring those relying on the revocation to prove capacity was present; (4) CONTEMPORANEOUS EVIDENCE: the 'golden rule' in probate practice strongly recommends that where there is any doubt about a person's capacity at the time of revoking (or making) a will, a medical assessment is obtained from the person's GP or specialist confirming capacity. This documentation provides crucial evidence if the revocation is later disputed.

Destroying a will (burning, tearing, or otherwise obliterating it) is one of the recognised methods of revocation under Wills Act 1837 s.20. But destruction WITHOUT the mental capacity to form the intention to revoke does NOT operate as a valid revocation: (1) THE ANIMUS REVOCANDI REQUIREMENT: revocation by destruction requires BOTH the physical act of destruction AND the mental intention to revoke (the animus revocandi). If the physical act happens but the person lacks the capacity to form the intention — because they do not understand what they are doing or what the consequences are — the will is NOT validly revoked; (2) PRACTICAL EXAMPLES: (a) a person with advanced dementia tears up their will but does not understand that they are destroying a legal document or what that means — the destruction is ineffective; (b) a person in hospital burns their will in a confused or delirious state — the revocation fails; (c) a person under undue influence or fraudulent misrepresentation is induced to destroy their will — the destruction may be challenged; (3) WHAT HAPPENS IF REVOCATION BY DESTRUCTION FAILS: the will survives legally. The problem is that the physical document may now be destroyed. In that situation: (a) a copy of the will (or the original text) can be proved in probate proceedings; (b) the testator's solicitor may hold a copy or the will may be stored with the Probate Registry; (c) the evidence of the original will's contents must be clear and convincing; (4) DEPENDENT RELATIVE REVOCATION: where a person destroys a will intending to replace it with a new one, but the new will is invalid or is never made, the courts may apply the doctrine of 'dependent relative revocation' — treating the destruction as conditional on the new will being valid. If the new will fails, the original will revives. This doctrine is narrow and strictly applied — it requires proof that the revocation was clearly contingent on the replacement; (5) ACCIDENTAL DESTRUCTION: if a will is accidentally destroyed (fire; flood; lost in post) WITHOUT any intention by the testator to revoke it, there is no revocation. The original contents must be proved by secondary evidence — a copy; a witness who read the will; notes.

This is one of the most important limitations of the lasting power of attorney — an attorney has NO authority to revoke (or make) a will on the donor's behalf, even if the donor lacks capacity: (1) THE FUNDAMENTAL RULE: making, altering, or revoking a will is OUTSIDE the scope of every LPA — both Property and Financial Affairs LPAs and Health and Welfare LPAs. The Mental Capacity Act 2005 does not give attorneys the power to execute testamentary instruments. Under MCA 2005 s.27, the following decisions are specifically excluded from the powers of any attorney (and any deputy) and CANNOT be taken on behalf of the donor: (a) making a will; (b) altering a will; (c) revoking a will; (2) WHY THE PROHIBITION EXISTS: testamentary capacity is a highly personal right. A will represents the testator's final intentions about who should benefit from their estate. Parliament decided that these intentions should only be changed by the testator themselves — and when that is impossible (due to incapacity), only by the court, with judicial scrutiny; (3) WHAT HAPPENS INSTEAD — STATUTORY WILL: if a person lacks testamentary capacity and it is necessary (or beneficial) to make, alter, or revoke a will on their behalf, the ONLY option is a STATUTORY WILL made by the Court of Protection under MCA 2005 s.18(1)(i). The court will make the will (or order revocation) in the terms it considers to be in the person's best interests — considering what the person would likely have done if they had retained capacity; (4) WHO CAN APPLY FOR A STATUTORY WILL: any person with a genuine interest in the welfare of the incapacitated person can apply. This includes: the attorney under a registered LPA; a deputy appointed by the court; a family member; a professional adviser; the person themselves (if they wish the court to act on their behalf); (5) PRACTICAL IMPLICATION: this prohibition means that families must act BEFORE capacity is lost. If an elderly parent has an outdated will (leaving everything to a predeceased spouse; making no provision for new grandchildren; ignoring a change in assets) but has now lost testamentary capacity, the only route to change the will is the Court of Protection — which is expensive, slow, and uncertain. This is why proactive will review is critical.

A statutory will is a will made by the Court of Protection on behalf of a person who lacks testamentary capacity. It is the only way to make, alter, or revoke a will when the testator cannot do so themselves: (1) THE LEGAL BASIS — MCA 2005 s.18(1)(i): the Court of Protection has jurisdiction to make decisions on behalf of a person who lacks capacity 'in relation to property and affairs'. Section 18(1)(i) specifically includes the power to make a will for a person who lacks capacity. Section 18(4) provides that the court has the same powers as the person would have had if they had capacity; (2) THE BEST INTERESTS TEST (MCA 2005 s.4): the court does not simply make the will the applicant suggests. It must determine what is in the person's BEST INTERESTS — applying the s.4 checklist: (a) what would the person have wanted if they had capacity (their past and present wishes; feelings; beliefs and values); (b) the views of family members and others interested in the person's welfare; (c) the person's likely future capacity (could they recover capacity to make a will themselves?); (d) financial considerations (IHT efficiency; protecting those who depend on the person); (3) THE APPLICATION PROCESS: (a) file an application to the Court of Protection (Form COP1) with supporting evidence of the person's lack of capacity (medical evidence); (b) provide details of: the person's assets and estate; their family; their existing will (if any); the proposed terms of the statutory will; why the statutory will is needed; (c) notify the person and other interested parties; (d) the Official Solicitor may be appointed to represent the person's interests; (e) a hearing is held; the court approves or modifies the proposed will; (4) COSTS: statutory will applications are expensive — typically £5,000–£15,000 in legal costs, paid from the person's estate. They should be a last resort, used when the existing will is clearly inappropriate or harmful to the person's interests; (5) TIMESCALE: a straightforward statutory will application takes 3–6 months. Contested applications take significantly longer; (6) THE GOLDEN RULE REVISITED: the best protection against a future statutory will application is ensuring the person makes their own will while they still have capacity — regularly reviewed and professionally drafted. This is far cheaper and more certain than a statutory will.

A diagnosis of dementia does NOT automatically mean a person lacks testamentary capacity. Capacity is assessed at the moment of the specific act — not based on a diagnosis alone: (1) DEMENTIA AND CAPACITY — THE LEGAL POSITION: under MCA 2005 s.1(2), every person is presumed to have capacity unless it is established that they lack it. A person with early-stage dementia retains testamentary capacity as long as they can satisfy the Banks v Goodfellow four-part test at the time of making or revoking the will. Many people with early-stage dementia retain sufficient capacity for years after diagnosis; (2) LUCID INTERVALS: a person with fluctuating capacity (dementia; bipolar disorder; intermittent confusion) may lack capacity at some times but have lucid intervals of sufficient capacity. A will or revocation made during a lucid interval, when the four-part test is satisfied, is entirely valid. The timing of the act of making or revoking must coincide with a lucid interval; (3) HOW TO PROTECT A WILL MADE BY SOMEONE WITH EARLY DEMENTIA: (a) obtain a capacity assessment from the person's GP or specialist BEFORE the will signing, contemporaneously with the appointment; (b) the solicitor drafting the will should make detailed notes of the interview — the questions asked; the answers given; the reasons for their satisfaction that capacity was present; (c) record evidence that the person understood the nature and effect of the will; their assets; and the potential beneficiaries; (d) the 'golden rule' (Kenward v Adams [1975] CLY 3591; Re Simpson [1977]): where a solicitor has any reason to doubt capacity, they should obtain a medical certificate before execution. Failure to do so leaves the will vulnerable to challenge; (4) PRACTICAL ADVICE FOR FAMILIES: if an elderly parent or relative has a dementia diagnosis but appears to have capacity, the family should encourage them to review and update their will IMMEDIATELY — and to obtain a formal medical assessment of capacity at the time of any will review. The window of capacity may close unexpectedly. Do not wait; (5) WHAT IF CAPACITY IS LOST BEFORE THE WILL IS UPDATED: the Court of Protection statutory will procedure is the only option. Expensive; slow; uncertain. The best outcome is always achieved when the person acts while capacity remains.