Challenges to wills based on lack of testamentary capacity have become much more common in recent years and will writers and testators will wish to try to reduce the chance of any challenges to a will being successful. Many will writers will therefore wish to follow the Golden Rule when assessing mental capacity.
What is Testamentary Capacity?
Testamentary Capacity is the capacity to execute a will and the test for this is set out in Banks v Goodfellow (1870) LR 5 QB 549. A testator must:
- Understand the nature of making a will and its effects – this being that the testator must know that they are making a Will to dispose of their assets AFTER they have died. In other words, the testator understands that the Will is to come into effect on their death and not before.
- Understand the extent of the property of which they are disposing – the testator does not need to know the exact value of everything they own but must know the extent of their wealth. For example, be able to give approximate figures of the assets which they own.
- Be able to comprehend and appreciate the claims to which they ought to give effect – they must know who might have first claim on their property. An example could be that the testator is married and therefore the spouse would have claim upon the estate.
- 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.
What is the Golden Rule
The Golden Rule is not a rule of law, but a matter of good practice. This was originally expressed by Templeman J in Kenward v Adams  ChD 29:
In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and findings.
Following the golden rule, it is therefore recommended that where a client is elderly or seriously ill that a professional testamentary capacity assessment is sought. The lack of obtaining a professional opinion would not invalidate the will but a professional assessment would assist should any disputes on the testator’s mental capacity arise after the client’s death. It should however also be emphasised that even where the Golden Rule is followed it does not automatically mean that the will cannot be challenged.
It may not always be possible to obtain a medical opinion, for example:
- The testator may be unwilling to consent.
- It may be impossible or impractical to obtain an opinion.
- The testator’s capacity could be likely to deteriorate quickly.
- Death may be imminent.
Where it is not possible to obtain a medical opinion on testamentary capacity and you believe that it is more likely that the testator has mental capacity, the Law Society recommends that you:
- Explain to the client that, in the event of a subsequent challenge to the will on the basis of lack of capacity, the lack of a contemporaneous medical opinion may make the challenge more likely to succeed; and
- Ask the client to confirm that they wish to continue, record the advice given and the client’s decision, and preserve as part of the will file.
It is highly advisable that this advice is put to the client in writing and that written confirmation is received. You would still need to complete your own testamentary capacity assessment under the Banks v Goodfellow test in these circumstances and keep detailed notes on why you believe the client has testamentary capacity.