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What is the level of capacity required to make a valid will?

There has been some confusion over the test for testamentary capacity. The Mental Capacity Act (MCA) 2005 states ‘A person must be assumed to have capacity unless it is established that he lacks capacity’. But this definition is at odds with the current common law position which was founded on the judgment in Banks v Goodfellow [1869-70] and remains relevant today. It was established that ‘Testators 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 and have no disorder of the mind that perverts their sense of right or perverts the exercise of their natural faculties in disposing of their property by will’.


On 13th July 2017, the Law Commission stated that the outdated law of wills needed an ‘overhaul’ to reflect the modern world and set about a consultation in which they wanted to move away from what they considered outdated principles and using a ‘Victorian test which takes no account of modern medical understanding.’ Crucially the consultation paper proposed applying the test of capacity in the MCA. Four years later, the Law Commission are back to the consultation paper, inviting contributions and comments by 31st July 2021.


Despite the consultation, the recent landmark appeal case of Clitheroe (Deceased), Re 2021 has come down firmly in favour of the Banks v Fellows test of capacity being retained. The Executor (John Clitheroe) appealed against an earlier decision to refuse to admit to probate two wills executed by his late mother who was the Testator. He latterly argued that the court should have applied the MCA test to establish the Testator’s capacity which would have altered not only the test which the court applied, but also the burden of proof. It was determined that the test in Banks had withstood the test of time, that previous case law applied and none of which had been changed by the Mental Capacity Act 2005.


Clitheroe has also sought to establish the correct test for delusions. The Testator’s belief that her daughter was a ‘shopaholic’ was impossible to define as a delusion as it was a matter of opinion rather than fact. However, the findings of sexual abuse within the family which led to the Testator’s divorce were facts upon which she had previously relied and accepted following the finding of letters. The court determined that there was now no rational explanation as to why the Testator latterly believed that the respondent had made up stories of abuse, other than the Testator had become delusional. Although the case has been adjourned to allow the parties to reach agreement the basis of the judgment remains the position.


Testamentary Capacity is not the preserve of the elderly and every practitioner must demonstrate that each and every client has the necessary capacity to make a will. The Testators capacity and understanding will also vary according to the complexity of the Will that has been drafted and the assets and claims upon the Testator and how these elements can be married together. It is important to note that assistance can be provided to a client to enable them to understand the extent of what they are undertaking and such assistance can come in any form. Provided that support is properly documented on the file as demonstrating how and why the practitioner concluded that the Testator had the capacity at the date the instructions were taken and again when the will itself was executed, the test may indeed be satisfied.


In order to avoid dispute Templeman LJ laid down guidance in what became known as the ‘golden rule’. There is no clear definition within the rule of the terms ‘aged’ or of someone who has suffered a ‘serious illness’, but the point remains that in such circumstances and where doubt is in the mind of the draftsman, the will should be witnessed by a medical practitioner who is ‘satisfied of the capacity and understanding of the Testator’.


Due to the impracticalities of a medical practitioner actually witnessing the will and to relieve the responsibility from the draftsman they can instead be instructed to undertake a capacity report so that at the date of execution of the will, it is formal record that the Testator has the requisite capacity to satisfy the test. However, such documents can be costly and take time to produce, time which the Testator may not have nor for costs they are willing to spend. Furthermore due to increased litigation in this area, General Practitioners (GP) are becoming less willing to provide a capacity report, highlighting in itself the difficulties faced by the draftsman in adequately discharging their duty of care to the Testator and potential future beneficiaries.


The draftsman must also be mindful of circumstances and events that can impair capacity, not only ill health. As part of a practitioner’s role, getting to know and understand a client will enable assessments of capacity to be more effective. Should a Testator seek advice during a time of severe stress, including grief then a claim for testamentary capacity could be successfully argued.


Where it is not possible due to cost or other factors for a formal capacity assessment to be undertaken it is incumbent on the practitioner to carry out sufficient tests to satisfy themselves. This can be undertaken in a straightforward and non-threatening way during discussions with the Testator and the practitioner should not be afraid to raise the question. The draftsman can then assess if the Testator is able to retain information, understand the concepts that are being put forward and make a decision if alternatives are offered, making full file notes throughout the discussion.


Undoubtedly however, this is an onerous obligation to place upon a practitioner who certainly does not have the medical training to make a formal assessment, and adds further weight to the importance of asking a properly qualified professional to undertake the drafting of your will and for the client to be prepared to pay for the level of service and expertise they are receiving.


Author: Amanda Perrotton


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