Testamentary capacity is a legal term that refers to the mental capacity required in order to make a will.
Testamentary Capacity law seeks to ensure that testamentary dispositions are free and voluntary, without any undue influence or pressure from others.
The Golden Rule states: “Whatsoever person so minded and intending as regards his testament which he intends should take effect after his death shall not do anything whereby what he thus does would cause him not then to have testamentary capacity.” This means testamentary capacity is presumed unless there is evidence to the contrary.
The starting point in testamentary capacity cases should be whether a person making his will has testamentary capacity, not whether he did have testamentary capacity on some particular date when the instrument was made.
Testamentary capacity can be assessed over periods of time and an individual’s mental health may influence their understanding or appreciation of events at any given moment.
Most commonly testamentary incapacity arises where someone claims that another person (the donor) lacked the requisite intention required under law for disposing by Will as evidenced by impaired thinking processes associated with abnormality of mind such as Alzheimer’s disease. Psychiatrists are frequently asked to assess testamentary capacity following concerns raised from family or a solicitor.
In testamentary capacity cases, the donor is usually one of two types: a person incapable of understanding the nature and effect of making a will (that is that they are unable to appreciate what it means by reading or explaining in layman terms); or a person who has testamentary capacity but as result suffers from some other condition which adversely affects.
The Golden Rule was established by Lord Denning MR in Re Hastings-Bass  Probate Reports 83 at 86:- “…the testator must have testamentary capacity when he makes his Will.”
In order to satisfy this standard, there needs only be an appreciation – not necessarily accurate – of certain basic facts such as property owned and family relationships. The question for the court is whether the will, once signed by the testator and properly executed, truly reflects his testamentary intentions; or as some have put it “the will must be a true expression of what was in the mind of the deceased at that time.”
The Golden Rule applies to all wills including those made on account of mental incapacity (such as an enduring power of attorney) although it may not apply where there has been undue influence.
The assessment for testamentary capacity requires psychiatrists to consider these key factors:
– A person who has testamentary capacity but suffers from some other condition which adversely affects their ability to make decisions about disposing property or financial affairs. This might include dementia, learning disabilities, psychotic conditions, or severe Obsessive Compulsive Disorder.
Testamentary capacity in England and Wales is assessed by psychiatrists who consider the mental capacity of a person to make a will at any given time. Wills are not regularly updated so it can be difficult for an individual to prove that they had testamentary capacity on their deathbed if there were many changes in their medical condition over the course of making one last will.
The Golden Rule states: “A testator must have testamentary capacity when he executes his Will; this means having sufficient understanding and memory as would enable him to understand what he was doing”. To determine testamentary , clinicians may use cognitive testing such as mini-mental state (MMSE) which tests short-term memory recall, orientation and language comprehension.
In certain cases testamentary capacity is not established due to the individual’s medical condition at time of executing their will (e.g., Alzheimer’s disease). In these instances a solicitor who drafts or reviews wills may refer to psychiatrists for an evidence based psychiatric assessment in order to determine testamentary capacity.
This includes individuals with conditions such as Korsakoff syndrome which causes problems with recalling information over long periods of time (including events that occurred during earlier stages of an illness) and can cause cognitive impairment affecting problem solving skills . A psychiatrist can assess how likely it is that testamentary capacity is impaired by asking questions related to specific issues within the history for example, capacity in the context of making a will.
In order to determine testamentary capability, psychiatrists are likely to gather evidence from family members, solicitors or colleagues who have known the person being assessed for long periods of time as well as information regarding their day-to-day lives e.g., whether they live alone or with someone else.
Psychiatrists also assess if there is any other relevant medical history which may impact on testamentary capacity such as certain medications or alcohol consumption.
A clinician may consider specific tests including memory testing but these are not necessarily routinely conducted except when concerns about mental health exist already (tests tend to focus more on cognitive impairment). The process by which psychiatric professionals diagnose conditions like Korsakoff’s Syndrome is by conducting neuropsychological testing. These tests are specialised and can take several hours to complete.
For testamentary capacity, the usual criteria that need to be fulfilled in order for a person to have testamentary capability (i.e., they understand what it means to make a will) are:
– understanding of property owned or the size and extent of their estate
– knowledge of who the intended beneficiaries are
-be able to describe a will and how it works
A clinician may consider whether testamentary capacity has been met after assessing all available information including medical history and cognitive functioning.
When assessing whether testamentary capacity has been met it is important to remember that intellectual ability alone is not sufficient for testamentary capacity but rather requires emotional intelligence in order for someone able to make decisions about their own wellbeing or financial affairs even when these can be considered unwise decisions.