What is my Will?
: A Study of the Principles of Testamentary Autonomy and Testamentary Freedom

Student thesis: Doctoral Thesis

Abstract

This thesis examines the law of testamentary capacity, and considers how best to assess capacity so that testator autonomy is respected. It takes the form of a compilation of four papers, with an associated commentary, written between 2016 and 2022. The papers focus on the current test for testamentary capacity, Banks v Goodfellow, and the interaction between the law of testamentary capacity and the requirement that the testator must know and approve of the contents of their will.
These papers contribute to the literature on testamentary capacity and testamentary autonomy, at a time when the Law Commission are working on reform of the law of wills. One paper was written prior to the publication of Law Commission’s 2017 Consultation Paper ‘Making a Will’, whilst others were written in response to it. Together, they look ahead to reform of these areas, including the proposed adoption of the Mental Capacity Act 2005 as a new test for testamentary capacity.
It is anticipated that, now that the Law Commission has re-started this project, these papers will feed into their proposals for reform. Furthermore if, as expected, the Banks v Goodfellow test is replaced by the capacity test set out in the Mental Capacity Act 2005, the research in these papers may also inform the development of subsequent case law.
Date of Award25 Apr 2023
Original languageEnglish
Awarding Institution
  • University of Portsmouth
SupervisorDaniel Bedford (Supervisor), James Hand (Supervisor) & Lee Roach (Supervisor)

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