Retrospective Testamentary Capacity assessment
In cases of contentious probate, a retrospective testamentary capacity assessment may be needed. If you are have a client who needs a retrospective capacity report, please get in touch.
The purpose of a retrospective capacity assessment is to look back at previous decisions and actions made by the testator in order to determine if they had sufficient mental capacity. This can be done so long as sufficient records exist from before the contested decision, for example contemporaneous medical records or notes taken by the solicitor or will writer.
If it is not possible for sufficient records to have been kept, other evidence can be presented which may include testimony from witness who were around during the disputed time period.
Retrospective Capacity Assessments are often conducted when there is alleged or apparent lack of capacity on part of the testator involved in the case (where incapacity has become an issue).
The reason for the need of a retrospective capacity assessment is that it is usually possible to obtain contemporaneous medical records, but not after some time has passed.
The effect of posthumous documentation on capacity assessments varies depending on how much time has passed since the creation of the document and whether or not this was documented at the time; if not, then its relevance depends upon whether enough evidence still exists which enables retrospective continuity (transparency).
A retrospective capacity assessment might vary depending on circumstances, but generally can be used as an argument to contest a will
These are necessary when it comes to contentious probate because they may help establish either lack of testamentary capacity or undue influence, or more rarely the case of fraudulent calumny. The requirement arises in two scenarios: (1.)when a will is challenged in court and (2.) when the executor requires consent from the beneficiaries to deal with the estate.
Where such an assessment is carried out, its relevance has been compared to that of a causal inquiry: ‘It does not seek to establish why or how death was caused; but rather whether D lacked capacity at the time he executed his will.’
The person appointed may be medically qualified, although not necessary. A forensic accountant may also be used because they have experience in financial matters and can accurately record past transactions
Given that it must vary between cases and events, it cannot be prescriptive because every case needs to be considered on its own merits. As such, there is no set model for carrying out a retrospective capacity assessment. However, they can still produce a similar outcome.
Key Components:
– Strength of Evidence
– Documentary Evidence
– Witness evidence (included in strength of evidence)
– Medical Evidence (if available and applicable)
Strength of evidence is important because it has to be unbiased, honest and precise. It also needs to have standards set for how strong the evidence needs to be so that there is no room for ambiguity when presented in court.
The documentary evidence can include prescriptions, medical reports or test results that provide information about the patient’s illness history such as cognition, mental state, evidence of confusion, disorientation or signs of dementia.
This allows for factual information that may not otherwise be accessible if witnesses were used instead. If a witness is used, it would be a description of the facts as they saw them. Even if a retrospective testimony is given by witnesses, there still needs to be strong evidence that the patient lacked capacity.
In this case there was clear evidence from those who had been caring for him on a daily basis that he lacked testamentary capacity and this was not rebutted by the retrospective evidence of others.
The judgment in this case provides clarification to practitioners when it comes to assessing capacity, but also highlights that there needs to be clear factual information available about the patient’s past history in order for a retrospective assessment to have evidential value.
It also shows that even if there is insufficient evidence at the time of the will being executed, it may still have testamentary effect because lack of knowledge or approval are doctrines separate from lack of capacity.
For example, it would require further investigation before exploring any other alternative explanations for why someone may have signed their name.