Capacity to make a Will One of the essential requirements for a Will to be valid is that the person making it (the testator) must have the necessary mental capacity to make a Will. Tags: the testator may loose their reasoning/capacity as to how they distribute their estate in their will. 549 QB xxxvii Sharp v Adams [2006] EWCA Civ 449; [2006] W.T.L.R. 5 Q.B. Therefore existing case law is relevant. 2020; [2010] W.T.L.R. Making a will if you have an illness or dementia. The last point falls with the actual will writer and it is important to remember that good notes are an essential in providing evidence in case any litigation does occur with regard to capacity. To make a Will, a person must: Understand the nature of making a Will and its effects. Also the medical reports from the time showed that the testator’s mental capacity had deteriorated rapidly and therefore it was found that the testator did not to have testamentary capacity and the estate was dealt with under the rules of intestacy. However, it was for the person putting the Will forward to prove capacity which they failed to do so. Again, the Court of Appeal considered the Will of a deceased father who had inexplicably left everything to his employees to the exclusion of his two daughters. The Mental Capacity Act 2005 covers people in England and Wales who can’t make some or all decisions for themselves. The rules which are derived from Banks and Goodfellow xxiv have formed the basis of section 3 xxv of the MCA 2005. If an individual suffers from such delusions and these thoughts fail to have any impact on the will produced for the testator then it is not considered an issue. Therefore, due to his bereavement, he was unable to make decisions with regard to the distribution of his estate. Key v Key [2010] EWHC 408 (Ch); [2010] 1 W.L.R. For example, if an executor named in such a will is insistent that the will is valid, it will be for the executor to prove that the testator had the necessary testamentary capacity. It’s always best to get the help of a lawyer to ensure a will is drawn up correctly, and during this process the lawyer has to take three key issues into consideration. Mental capacity will be presumed if the testator left a will which appears to be rational and contains no irregularities. However there have been instances where the Court has accepted that the Will is The Mental Capacity Act 2005 (MCA 2005) xii, came into force on the 1st day of October 2007 and introduced statutory conditions in relation to the area of mental capacity which, until this point, had been directed by case law. There are some exceptions to this rule which gave individuals the right of ‘privileged’ status among certain individuals ii. 5 Q.B. This means if the will is challenged there will be something to produce for the court to establish why you the will writer, believed the testator had the mental capacity to make a will. xxx Vaughan v Vaughan [2002] EWHC 699; [2005] W.T.L.R. In the case of making a Will or power of attorney, age is a statutory condition precedent. In such patients it is often the case that on some days they understand matters and on others their memory is lacking. by Martin Oliver The facts were looked at and the drafter’s notes considered as to how capacity had been judged and whether an up to date medical opinion had been ascertained in relation to the testator’s capacity. 549 QB vi Banks v Goodfellow (1869-70) L.R. It was held at the time the will was made she had capacity to make it. This refers simply to the fact that the testator needs to have some understanding of the property/goods/money he has to give under the will. 1059; (2007-08) 10 I.T.E.L.R xxxviii Banks v Goodfellow (1869-70) L.R. Section 2 xv of the Act, states that ‘a person who lacks capacity in relation to a matter at the material time and they are unable to make a decision for themselves, in relation to the matter because of an impairment whether the disturbance in their mind or brain xvi’ which is either permanent or temporary xvii. Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts. Mental capacity can be established with the use of Mini Mental State Examinations and individuals who appear, on face value, to be perfectly capable of making a Will might score very badly in the Mini Mental State Examinations. Therefore the testator needs to satisfy the will writer that they hold “a sound and disposing mind and memory” v. The case of Banks and Goodfellow vi established the following points which we need to consider when examining capacity. In this case the testator was aged 82 and in poor health and had suffered several strokes. The law relating to whether a person has sufficient mental capacity to understand the content of his will was established in the case of Banks v Goodfellow [1869-70] which stated that the testator must: The factors referred to in Banks v Goodfellow are considered in more detail below. If a person cannot do these things, then they will not have the mental capacity to make a will. In addition to the above we should always look at the following: 1) Discuss any earlier wills the client as made (and the reasons for changing it); and 2) Take the instructions in the absence of anyone who may stand to benefit or who may have influence over the testator. Traditionally two presumptions have applied: a) There is a presumption that the testator had testamentary capacity – the will is therefore submitted for probate unless anyone who is challenging the will can produce sufficient evidence to rebut this presumption. on 17 May 2013. In legal terminology, this legal requirement for mental ability is referred to as testamentary capacity. If you have grounds to suspect that the testator did not have the necessary testamentary capacity to understand the content of their will, it is important to take action and legal advice as soon as possible. It makes no difference if the testator cannot remember all the details precisely or understands the mechanics of the will. The above point was demonstrated in the case of Key v Key ix. This can only be challenged if your mental capacity when you revoked your will is called into question. A lack of mental capacity is when a problem of the mind or brain stops a person making a specific decision when they need to. It is common that doctors and nurses will not be witnesses to a will. Soldiers under the age of 18 years old who are in active service; and 2. What you must check. The recent BC Supreme Court decision in Moore v Drummond illustrates how the law evaluates a person’s mental capacity to make a will. Therefore, to get a statement from the doctor or medical practitioner who is the named doctor/carer for the testator as to the testator’s mental capacity at the date the will is written is good practice. The above case bought a new understanding to the concept of mental capacity in that all the testator’s circumstances should be examined when looking at cases of mental capacity, and every aspect should be taken into consideration when assessing capacity. These include making a will, consenting to medical treatment or appointing someone else as our decision maker for the future (ie making an advance directive ). Such claims may include those pursuant to the Inheritance (Provision for Family and Dependents) Act 1975, details of which are included in Part 8 of this series of articles. 623 xi Banks v Goodfellow (1869-70) L.R. The first step is understanding what “sufficient mental capacity” means in the context of making a will. signed in the presence of two witnesses). Try and obtain the testator’s medical records to establish whether the individual was suffering from any illnesses. This involves the testator being able to make and understand the decisions in making a will. The second limb to this test is that the testator must have some idea of the extent of the property they are disposing off vii. Capacity to make a will. The third element is known as ‘the claims to which he ought to give effect’ viii.This simply means the testator must have the capacity to make a will and must understand who they are giving the property too. Another important point is relying on relatives or friends to establish a testator capacity could be misleading as they may be partial or genuinely unaware of the testator’s mental capacity, in their inability to make and understand such a process. Assessing mental capacity Mental capacity, in the […] The question as to whether a person has the relevant mental capacity is a factual question which is often determined by medical evidence. 1083 QBD xxxii Masterman-Lister v Jewell; sub nom Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All E.R. 171 PDAD xxviii Ewing v Bennett [2001] W.T.L.R. In this case the testator had an irrational dislike for his daughter and as a result ended up in him leaving nothing in his Will to his daughter. This states a will is valid even if the testator capacity has changed by the time the will was provided and executed: a) The testator had testamentary capacity at the time they gave an instruction to prepare a will; b) The will was prepared in accordance with those instructions; and c) At the time the will was executed the testator remembered having given the instructions for a Will to be prepared and believed that the Will had been completed in accordance with the instructions given. This concept has also been called sound mind and memory or disposing mind and memory. The testator was at the time suffering from advanced multiple sclerosis and on a heavy drugs regime which was likely to impair his brain and consequently effect the testator adversely. The effect of the burden of proof was that a person who alleges that a will was within a lucid interval had to prove it was within such a lucid interval. Another case which shows this principle is Sharp v Adams xxxvii. There are slightly different tests for mental capacity depending on the type of decision being made. In the case of Ewing v Bennett xxviii it was established a testator who executed her Will in the early stages of dementia (periodic forgetfulness the main problem), her mental capacity rapidly deteriorated. If the presumption is rebutted, it is then up to the propounder to prove the testamentary capacity of the testator. 5 Q.B. and must not be effected by any “disorder of the mind” that shall “poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties and that no insane delusion shall influence his will in disposing of this property and bring about a disposal of it which, if the mind had been sound, would not be made”. If you can’t sign the will, it can also be signed on your behalf, as long as you’re in the room and it is signed at your direction. A Statutory Will is every bit as effective as if the person had full mental capacity and made the Will themselves. In terms of mental capacity, it is important to keep in mind that capacity is a legal definition and there is no set scientific standard that applies. 162 xxxiii Mental Capacity Act 2005 xxxiv Charles v Fraiser [2010] EWHC 2154 (Ch); [2010] W.T.L.R. Additionally, matters have been further complicated by the introduction of the Mental Capacity Act 2005 (the "MCA") which sets out a new statutory "issue-specific" capacity test in many areas. Justice Behrens, who found in this case there are reason for grave suspicions of incapacity. The law relating to whether a person has sufficient mental capacity to understand the content of his will was established in the case of Banks v Goodfellow [1869-70] which stated that the testator must: 1. understand the nature of the act and its effects 2. understand the extent of the property of which he/she is disposing 3. be able to comprehend and appreciate the claims to which he/she ought to give effect 4. A testator need only have the capacity to understand the extent of his property. You may choose to decline all tracking cookies, but if you do some key features may not work as expected. The Michigan statute that establishes the mental capacity requirement for a will is in Section 700.2501 of the Estates and Protected Individuals Code (EPIC). In the context of estate law, “testamentary capacity” is a legal term that is used to describe a person’s legal and mental ability to make a valid will. We should always make a note of who remains and ensure we establish this was the client’s wish to keep the third person in on any interview. The above lays out the conditions which dictate the rules in relation to capacity of a testator. Contesting a will on the grounds of mental capacity, Posted He was convinced that his family, friends and all of his professional advisers where part of this plan. However, the evidence of close friends and family is also relevant and a person can be found to be lacking mental capacity based upon their evidence alone. 8 P.D. In the case of mental capacity without a formal capacity assessment, a person's mental capacity to make a Will or power of attorney is more subjective and can be open to debate. 549 QB, The first limb test of nature of the act and its effects. The will writer also needs to ensure, as always, that good notes are taken and they keep a full record with the will instructions. This infers an individual will have the mental capacity unless the contrary can be shown. In examining testamentary capacity there are restrictions which exist in regard to capacity which was established under the Wills Act 1837 i. 5 Q.B. Also we need to remember that there are other factors which need to be considered, for example, how the courts read other case law and statues such as the Mental Capacity Act 2005 xliii in determining how each case will be viewed. If you plan to make a lot of changes to your will it might be easier to simply revoke or cancel your current will by making a new one. Another important part of capacity is the individual’s ability to rationalise and consider if they suffer from any insane delusions. The legal test for mental capacity when making a Will remains the test set out in the 1870 case of Banks v Goodfellow. When contesting a will, problems arise with issues concerning mental capacity where a disease affects the mind over a period of time, e.g. Section 3 provides that a person is unable to make a decision for themselves if unable to: a) Understand the information relevant to the decisions xix; b) Retain the information relevant to the decisions xx; c) Uses or weigh the information as part of the process xxi; or d) Communicates the decisions (whether by talking, using sign language or any other means) xxii. Another test of capacity is one which you will have to determine on your own and is the question of whether the testator has the mental capacity to make a will. However, the Act will undoubtedly influence the approach any court will take when weighing up such matters when it comes to testamentary capacity. In some instances we cannot always have the client alone when we fill out our instruction booklet as they may have a companion with them. The MCA is silent in relation to making a will, but it will undoubtedly influence how the courts consider the issue of a testator's capacity in the future. You may wish to enter a caveat with the Probate Registry to prevent a Grant of Probate being taken out and the assets of the estate distributed. 549 QB xliii Mental Capacity Act 2005, A holographic Will is one that has been entirely handwritten and signed by the testator.…, The principle tax saving opportunity available to a home owner is the Capital Gains Tax…, If your client is a business owner they will be considering more than the distribution of their personal…. vii Banks v Goodfellow (1869-70) L.R. 623 x Key (Deceased), Re sub norm. 549 QB xxv Mental Capacity Act 2005 xxvi Mental Capacity Act 2005 xxvii Parker v Felgate (1883) L.R. If, however, having seen the testator’s medical records and spoken to close family members, it is established that the testator has a history of mental illness/confusion or memory loss, it will be for those persons seeking to rely on the document to establish capacity (see Vaughan v Vaughan [2005]). In contrast, the Law Commission made a provisional proposal that the mental capacity test set out in the Mental Capacity Act should be adopted as the test for testamentary capacity. After seven years of uncertainty there finally seems to be a definitive answer as to whether the correct test for capacity in relation to making a Will is the traditional common law test of Banks v Goodfellow or the test under the Mental Capacity Act 2005. The law does not call for a perfectly balanced mind. MW Legal Services 26 Bryn Road Weymouth Dorset DT4 0NP. The test to access mental health is governed in the case of Banks and Goodfellow xlii, which establishes factors which should be examined. 549 QB xxxix Kostic v Chaplin [2007] EHWC 2298 (Ch); (2007-08) xl Allen v Emery; sub nom. The mental capacity to make, amend or cancel (revoke) a Will is called ‘testamentary capacity’. The court held in this case that the will drafter’s notes had not shown the client’s capacity to make a will was not clear as to whether this was a lucid moment. 1489; 13 I.T.E.L.R. Our Wills are covered by £2.5million Professional Indemnity Insurance and are written by Matt Walkden, a Professional UK Will Writer who is a Member of the Society of Will Writers and has over 10 years experience in the industry.We believe Will writing is a serious business so we've invested time and money to make sure you get a robust, fully legal Will that gives you and your family peace of mind. the testator ought to have considered his daughter in provision of his will. Everyone working with and/or caring for an adult who may lack the capacity to make specific decisions, either life changing or everyday matters, must comply with the Mental Capacity Act. In the above case Briggs J x accepted, ‘symptomatic effects of bereavement are capable of being almost identical to that associated with severe depression and can, therefore, mean that someone suffers a temporary loss of capacity’ Briggs J, also recognised the testator in this case could more than likely satisfy at least one of the tests in Banks and Goodfellow xi. Ms. Drummond died in 2011 at the age of 98. Knowledge base / The information must be relevant however a decision includes information about the reasonably foreseeable consequences of: a) Deciding one way or another way, or b) Failing to make the decision. Key v Key [2010] EWHC 408 (Ch); [2010] 1 W.L.R. However, as professionals we have experienced meetings with clients who can from day to day have varying levels of capacity especially with the more elderly. As seen in Brown and Deacy xxxi it shows the testator had given instructions for leaving a certain legacy and it excluded one of her living children. A person making a will must be of “sound mind, memory and understanding” when making a will. The ‘testator’ needs to be able to understand what they are doing at the time the Will is made and also at the time it is executed (i.e. Mariners and seamen who are at sea iii. Mental capacity when making a will In England and Wales, making a will gives someone the legal ability and right to leave their estate and valued possessions to whoever they want to. The Mental Capacity Act 2005 Of course unfortunately, there may be times when a person is deemed to have lost capacity and not in the mindset to be able to amend or create a Will. Where a will is successfully disputed and the court confirms the will is invalid, if there is not an earlier valid will, then the testator’s estate will be distributed according to the intestacy rules. Mental capacity requirements to make a will With debilitating conditions such as dementia and Alzheimer’s on the increase, the question of whether or not a person has mental capacity to make a will frequently arises. The trial judge in this case said that the act of the testator in excluding his daughters was not just and the fact that the donor was under a heavy drug regime, which affected the way the testator perceived his daughters. How Mental Capacity is Determined. Mental capacity, particularly in the earlier stages of a condition such as dementia, can fluctuate from day-to-day and the extent of a person’s understanding may not always be clear. An example of this would be either a spouse or children. Testamentary capacity is the legal term used to describe a person's legal and mental ability to make or alter a valid will. The first principle is the testator needs to understand the nature of the act and its effects. The above is often referred to as the Golden rule and if this not followed it will not instantly mean that the will is invalid as can be seen in the case of Allen and Emery xl. The test for capacity to execute a valid will is based in case law. 2020; [2010] W.T.L.R. Alzheimer’s. Powers of attorney can be made at any time when the person making it has the mental capacity to do so, provided they're 18 or over. However, it is important to note, that minors over the age of 16 can make a valid statutory nomination of certain assets iv, provided the nomination is in writing and witnessed by at least one person. The person making the will must have understood the nature of making the will, the extent of the property which he/she was disposing of and the claims to which he ought to give effect to.. A person making a will must be of “sound mind, memory and understanding” when making a will. A Statutory Will can only be made when someone lacks the mental capacity to execute a normal Last Will for himself. 549 QB xii Mental Capacity Act 2005 xiii Mental Capacity Act 2005 xiv Mental Capacity Act 2005, Section 1 xv Mental Capacity Act 2005, Section 2 xvi Mental Capacity Act 2005, Section 2 (1) xvii Mental Capacity Act 2005, Section 2 (2) xviii Mental Capacity Act 2005 xix Mental Capacity Act 2005, Section 3 (1)(a) xx Mental Capacity Act 2005, Section 3 (1)(b) xxi Mental Capacity Act 2005, Section 3 (1)(c) xxii Mental Capacity Act 2005, Section 3 (1)(d) xxiii Mental Capacity Act 2005 xxiv Banks v Goodfellow (1869-70) L.R. This point was also shown in Barrett v Kaspryyk xxix which also illustrates the point that a testator need not have unclouded mental faculties to make a will. For a will to be considered valid, the testator (the person making the will) must be of sound mind, memory and understanding, this is known as having testamentary capacity. Another test of capacity is one which you will have to determine on your own and is the question of whether the testator has the mental capacity to make a will. This has always been the position in relation to testamentary capacity under case law. This states that a testator must have attained the age of 18 years old to be legally entitled to make a will. Therefore, under this delusion the testator gave a substantial part of his estate to the Conservative Party. Working alongside a tax advisory practice, we acted for individual clients on the implementation of a complicated tax-efficient reorganisation of a property company where there had been a shareholder falling out. Even if the medical records are not supportive of a claim concerning mental capacity, if there are witnesses confirming the individual lacked such capacity, it may be possible to contest a will. The idea is that the person making the will (the “testator”) must have sound mind and judgment to understand that they are making a will. The MCA 2005 xxvi makes it clears that the question of capacity becomes in relation to time, i.e. How to make a Statutory Will Home / For example, should the testator believe he is being tormented by demons, as this would have no impact on the will, it is not considered to be an issue in terms of testamentary capacity. In the common law tradition, testamentary capacity is the legal term of art used to describe a person's legal and mental ability to make or alter a valid will. Society of Will Writers Code of Practice 2018 03, Mental Capacity laws relating to Will Writing. Copyright © 2020 Make a fully legal online Will today. Earlier in this article we looked at the MCA 2005 xxxiii and section 1 which states that it must be assumed that the person has mental capacity unless it is otherwise proven, however, as mentioned earlier this section does not have a direct burden on testamentary capacity. The ability to understand … The fact that a person is only able to retain information for a short time does not prevent them being regarded as able to make such a decision. Therefore we will need to identify what will cause a will to fail or be challenged in order that we can avoid any potential pitfalls. This rule was established in the case of Parker and Felgate xxvii which provides limited exceptions to the above rule. They are made by the Court of Protection under the Mental Capacity Act 2005. 401 xxxi Brown v Deacy [2002] W.T.L.R. … We acted for a married couple on this innovative IHT planning, which is a further development of so-called double dip IHT tax planning and is based on the assumption that the husband (H) will die first before his wife (W). ix Key (Deceased), Re sub norm. To succeed with contesting a will, it must be shown at the time the will was executed, the testator did not have the capacity to make a will. 5 Q.B. 249 CA (Civ Div) xxix Barrett v Kaspryyk Unreported [2000] However, weighing the evidence in the period up to the testator’s death this had shown he clearly lacked the ability with regard to his decision-making powers as required by a testator. WILLS CONTESTING: Did the person making the will have the mental capacity? This will, if the minor dies, allow a certain amount of control over their personal goods. The death of a minor is otherwise dealt with under the rules of intestacy if there are any assets to distribute. If a Will is rational on its face, and correctly executed, it will be presumed that the testator had capacity … Understand the nature of the estate which they are leaving in the Will. The testator is not necessarily required to understand the precise legal machinery in the will but will need to understand its broad effect. Her memory had been getting bad for a number of years and following a recent accident she was put into a care home. If a testator did not consider leaving part of their estate to a close family member or did not consider a claim against the estate, this may be an indication that the person lacked the necessary mental capacity to understand their actions and it may be possible to contest a will. Deciding whether this is the case is not always straightforward. 549 QB, The third limb test claims which ought to be bought. Testamentary capacity is a legal term used to describe a person’s mental ability to execute a will at the time it is signed and witnessed. This is unsurprising, given that testamentary capacity relates to the mental capacity of the deceased at the time of writing their last will and testament. The second rule is in relation to the actual mental status of the testator. Both an EPA and LPA must be registered. The testator (the person who made the will) may have been very old when they made it. Those testators who can be awarded the above status are the following individuals: 1. Just because a person making a will was moved by “frivolous, mean or even bad motives” will not make a will invalid. In terms of capacity, if there is any doubt in the mind of the will writer then proceed to obtain medical evidence to provide evidence of the testator’s mental capacity. If the person making the will (testator) lacks testamentary capacity at the time that the will is executed, the will is invalid. 455 xxxv Dew v Clark and Clark (1826) xxxvi Banks v Goodfellow (1869-70) L.R. Contesting a will: knowledge and approval, Dealing with a follower notice and accelerated payment notice, Complex reorganisation of company interests and property assets, understand the nature of the act and its effects, understand the extent of the property of which he/she is disposing, be able to comprehend and appreciate the claims to which he/she ought to give effect. An example where such delusions have affected the Will can be seen in the case of Dew v Clark and Clark xxxv. We use cookies to track usage of our site. i Wills Act 1837, Section 7 ii Wills Act 1837, Section 11 iii Wills Act 1837, Section 11 iv Wills, Administration and Taxation Law and Practice, John Barlow, Lesley King and Anthony King, 10th Edition 2011, ch 21, pp 453-454 v Banks v Goodfellow (1869-70) L.R. This also means that the testator is expected to make gifts within the realms of morality ensuring those who should receive under the Will, actually does so. 5 Q.B. Most people would imagine that a person who has dementia is not capable of making, or even changing, a will. Deborah Adams, wills and probate lawyer at Parnalls in Launceston explains the rules. 5 Q.B. Cases in which the testator did not understand the extent of the property are very rare. This Will was refused by the probate office due to the third rule in Banks v Goodfellow xxxvi i.e. at the time a person makes these decisions the testator is deemed to have the capacity to do so. In examining cases with regard to capacity, the court will need to establish the testator had sufficient mental capacity to make a will. Or perhaps they were losing their memory or had other cognitive difficulties associated with growing old. 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