Testamentary Capacity assessment

What is a testamentary capacity assessment?

For a will to be considered valid and enforceable, the person making the will, known as the testator, should have mental capacity to do so.

The relevant test to assess capacity to make a will is based upon the seminal case law Banks vs Goodfellow.

A testator must understand the nature of making will, and its effects, understand the extent the property which they are disposing, be able to comprehend and appreciate the claims to which they will to give effects and have no disorder of mind that prevents the exercise of their natural faculties in disposing of their property by will.

When the Mental Capacity Act 2005 came into force in October 2007 there was some confusion as to whether the prior case law would be superseded by the statutory test sets out in the new 2005 Act

For example, the Mental Capacity Act 2005 requires that the person understands the reasonably foreseeable consequences of their decision, but this is not so in the testamentary case law example.

What is a capacity assessment to make a a will?

A capacity assessment for a will determines whether the testator (the person making the will) is of sufficiently sound mind to be able to make a will and understand its consequences.

A professional capacity assessment for will making involves an interview taking into consideration previous medical and psychiatric history, mental state, cognitive examination, review of capacity and an opinion on undue influence.

In most cases it is preferable to assess testamentary capacity with an expert psychiatrist who can produce a testamentary capacity report for the use by the courts in case of later challenge.

What is a lack of testamentary capacity?

A testator (i.e. the who executes a will) should have a certain level of cognitive function at the time the will is executed. The level of cognitive function required of a testator to make a valid will is called testamentary capacity.

Is it possible to prove testamentary capacity?

Proving testamentary capacity, particularly in retrospect is challenging. The best way is to counter future claims on the estate is to arrange a contemporaneous testamentary capacity assessment at the time the will is written.

If this is not possible, an experienced psychiatrist can review medical notes and offer a retrospective opinion on mental capacity at the time depending on supporting evidence from the period in question.

How do you arrange testamentary capacity assessment in the UK?

An experienced psychiatrist can be instructed to perform an assessment and prepare a report detailing the presence or absence of a mental disorder and assessing the key elements of testamentary capacity.

What are the tests for mental capacity to make a will?

The test for capacity to execute a valid will is based on seminal case law. A testator must:

• Understand the nature of making a will and its effects.
• Understand the extent of the property of which they are disposing.
• Be able to comprehend and appreciate the claims to which they ought to give effect.
• Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.

The level of understanding required by the test varies according to the complexity of the will itself, the testator’s assets and the claims on the testator (Banks v Goodfellow (1870).

Who can assess testamentary capacity?

A letter of capacity from doctor, specifically a psychiatrist which is contemporaneous to the writing of the will can ensure there are not later challenges to the validity of the will.

I need to do a testamentary capacity assessment: how can this be arranged?

Contact our experienced team for a quote and to discuss your requirements. Typically this can be conducted within 24-48 hours with a report provided soon thereafter.