Testamentary mental capacity assessment

A summary of case law of testamentary capacity and psychiatric issues in retrospective challenges of testamentary capacity. If you are have a client who may lack testamentary capacity, please get in touch.

What is a testamentary mental 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 execute a valid 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Capacity Act 2005 came into force in October 2007 there was some confusion as to whether the prior case law would be superseded by the statutory test sets out in the new 2005 Act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.




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