What is Testamentary Capacity?
Lawyers are guided by the historical case of Banks V Goodfellows which sets out the four stage test which all four points must be satisfied to confirm the testator has sufficient capacity:
- Must appreciate the nature and consequences of making a Will;
- Must be able to understand the extent of his/her property;
- Should be able to consider any “moral” claims to their estate (e.g. from their surviving spouse or child); and
- Must not be affected by any disorder of mind or any insane delusions.
Furthermore, it is legal practice to follow the Golden Rule to ensure the Testator has the full mental capacity. The term Golden Rule is specifically used by Solicitors when Testators are making a Will. This rule, established in case law Kenward v Adams, advises that a medical practitioner should assess the client’s capacity to evaluate their state of mind before a Will has been executed. This helps to avoid or limit probate disputes later on. Additionally, solicitors should always act in their client’s best interests, maintain confidentiality, and adhere to professional conduct rule.
The Golden Rule exists to protect the vulnerable and to prevent undue influence or coercion. Failure to obtain such evidence, could mean that the Will may become invalid after the testator has died, which in turn could mean family members contesting the testator’s Will.
Trudi Bates, Senior Associate in the Wills & Probate team attends to a variety of different people who have specific requirements and needs. She asks an array of questions regarding themselves, their family, assets and what they require in their Wills. This is to ensure that the client has the full knowledge and understanding of their estate and the consequences of distribution. If she feels that the client does not understand the concept of their Will, she will ask for them to attend a Doctor or Psychologist to obtain a capacity assessment to avoid potential disputes after death, which in turn is following the Golden Rule.
If you would like more information or would like to have a Will prepared for yourself, please call us on 01708 784069 or email Trudi directly trudibates@mplaw.co.uk
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