Mental Capacity laws relating to Will Writing

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    A most important part of our job is to be able to access the client’s capacity and be sure that they satisfy the requirements of making a valid will. 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.

    In examining testamentary capacity there are restrictions which exist in regard to capacity which was established under the Wills Act 1837 i.

    This states that a testator must have attained the age of 18 years old to be legally entitled to make a will. There are some exceptions to this rule which gave individuals the right of ‘privileged’ status among certain individuals ii.

    Those testators who can be awarded the above status are the following individuals:

    1. Soldiers under the age of 18 years old who are in active service; and
    2. Mariners and seamen who are at sea iii.

    The death of a minor is otherwise dealt with under the rules of intestacy if there are any assets to distribute.

    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. This will, if the minor dies, allow a certain amount of control over their personal goods.

    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 involves the testator being able to make and understand the decisions in making a will. 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. The first principle is the testator needs to understand the nature of the act and its effects. The testator is not necessarily required to understand the precise legal machinery in the will but will need to understand its broad effect.

    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. 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. This need not be an inventory which breaks down into an intricate and detailed list but the testator needs to appreciate the extent of their wealth.

    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. The concepts which also have to be brought into consideration are the testator must be able to give some careful thought to the idea of who should receive what out of the testator’s estate. 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. An example of this would be either a spouse or children.

    It is also important to recognise that in some circumstances an event can cause loss of capacity for a moment of time, i.e. the testator may loose their reasoning/capacity as to how they distribute their estate in their will.

    The above point was demonstrated in the case of Key v Key ix. This case showed that a husband, who lost his partner after 65 years of marriage, was deemed by two medical specialists not to have full capacity. Therefore, due to his bereavement, he was unable to make decisions with regard to the distribution of his estate.

    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. 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.

    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.

    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. The MCA 2005 xiii in section 1 provides the following should be considered when examining mental capacity xiv,

    a) A person is assumed to have capacity until the contrary is established on the balance of probabilities;
    b) Not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success; and
    c) Not to be treated as unable to make a decision simply because they make an unwise one.

    This infers an individual will have the mental capacity unless the contrary can be shown.

    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. The MCA 2005 xviii implies the individual would lack capacity to make such a decision if the person has an impairment/disturbance in their mental ability.

    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.

    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. 

    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.

    It is important to remember the MCA 2005 xxiii rules are not directly designed with regard to accessing testamentary capacity. However, the Act will undoubtedly influence the approach any court will take when weighing up such matters when it comes to testamentary capacity.

    The rules which are derived from Banks and Goodfellow xxiv have formed the basis of section 3 xxv of the MCA 2005. Therefore existing case law is relevant.

    The MCA 2005 xxvi makes it clears that the question of capacity becomes in relation to time, i.e. at the time a person makes these decisions the testator is deemed to have the capacity to do so.

    This has always been the position in relation to testamentary capacity under case law.

    This rule was established in the case of Parker and Felgate xxvii which provides limited exceptions to the above rule. 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. It makes no difference if the testator cannot remember all the details precisely or
    understands the mechanics of the will.

    In examining cases with regard to capacity, the court will need to establish the testator had sufficient mental capacity to make a will. It must be considered that a testator’s capacity does not need to be perfect. 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.

    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. It was held at the time the will was made she had capacity to make it. 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

    The main rule when trying to prove the testator had capacity is that (the propounder) must prove that it was properly signed, witnessed and at the time of execution the testator had the capacity to make the document.

    This principle was examined in the case of Vaughan and Vaughan xxx. In this case the testator was aged 82 and in poor health and had suffered several strokes. Justice Behrens, who found in this case there are reason for grave suspicions of incapacity.

    He accepted that there was some evidence on both sides. However, it was for the person putting the Will forward to prove capacity which they failed to do so.

    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. 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. 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. 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. 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.

    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. If the presumption is rebutted, it is then up to the
    propounder to prove the testamentary capacity of the testator.

    b) Mental Status are presumed to continue – is a term which implies if the testator suffers from mental illness before they make a will, then it is presumed that they will lack mental capacity when they actual give the instructions. It will then be up to the propounder of the will to rebut
    the presumption by proving that the will was made in a lucid moment.

    The rule in b) above, is doubtful as in the case of Masterman-Lister and Brutton & Co xxxii proved, when the Court of Appeal reaffirmed the principle that an adult must be considered to have capacity and to be held as competent, if this is not the case this would mean the propounder would have the burden of proving the testator lacked capacity.

    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.

    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. This allows for the safety of the testator and ensures that the will writer is acting in the best interests of the client and ensures you avoid the will being successfully challenged on death due to capacity issues.

    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.

    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.

    The importance of the test is not for testamentary capacity; rather it is one which carries out a number of questioning strategies in order to decide how good an individual’s actual short term memory is in practice. In Charles and Frazer xxxiv where it was discovered that an elderly testator, on examination by a consultant psychiatrist, had forgotten her relatives, scored very badly in this test.

    Another important part of capacity is the individual’s ability to rationalise and consider if they suffer from any insane delusions. 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. 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.
    An example where such delusions have affected the Will can be seen in the case of Dew v Clark and Clark xxxv. 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 Will was refused by the probate office due to the third rule in Banks v Goodfellow xxxvi i.e. the testator ought to have considered his daughter in provision of his will.

    Another case which shows this principle is Sharp v Adams xxxvii. 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 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. In this instant the court applied the rule in Banks and Goodfellow xxxviii and they were satisfied however the fourth test was not satisfied. 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.

    In the case of Kostic and Chaplin xxxix, the testator believed that there was an intentional conspiracy of dark forces against him. He was convinced that his family, friends and all of his professional advisers where part of this plan. Therefore, under this delusion the testator gave a substantial part of his estate to the Conservative Party.

    It was held by the court that the delusions he was suffering from had affected the testator’s opinion of his family and was a poisonous disorder of the testator’s mind.

    The court reasoned that if the testator had not been suffering from these delusions, he would have been of sound mind and he would not have made such a disposal of the property through his will.

    If any doubt or suspicion exists with regard to the capacity of a client proposing to make a will, then we should involve a medical practitioner to evaluate the testator.

    Failure to do so could result at the will being challenged later.

    It is common that doctors and nurses will not be witnesses to 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 will writer also needs to ensure, as always, that good notes are taken and they keep a full record with the will instructions. 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.

    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.

    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.

    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. 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. The first is with regard to age and as we have seen, that only in certain circumstances a person who is under 18 years of age can make a will this is if they are undertaking a certain activity xli. The second rule is in relation to the actual mental status of the testator. The test to access mental health is governed in the case of Banks and Goodfellow xlii, which establishes factors which should be examined. 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.

    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. Also if there is any doubt about the mental state of the testator then medical advice should be sought to ensure that the testator’s will can be seen as court worthy.

    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. 5 Q.B. 549 QB
    vi Banks v Goodfellow (1869-70) L.R. 5 Q.B. 549 QB, The first limb test of nature of the act and its effects.
    vii Banks v Goodfellow (1869-70) L.R. 5 Q.B. 549 QB, The second limb test extent of the property of which they dispose.
    viii Banks v Goodfellow (1869-70) L.R. 5 Q.B. 549 QB, The third limb test claims which ought to be bought.
    ix Key (Deceased), Re sub norm. Key v Key [2010] EWHC 408 (Ch); [2010] 1 W.L.R. 2020; [2010] W.T.L.R. 623
    x Key (Deceased), Re sub norm. Key v Key [2010] EWHC 408 (Ch); [2010] 1 W.L.R. 2020; [2010] W.T.L.R. 623
    xi Banks v Goodfellow (1869-70) L.R. 5 Q.B. 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. 5 Q.B. 549 QB
    xxv Mental Capacity Act 2005
    xxvi Mental Capacity Act 2005
    xxvii Parker v Felgate (1883) L.R. 8 P.D. 171 PDAD
    xxviii Ewing v Bennett [2001] W.T.L.R. 249 CA (Civ Div)
    xxix Barrett v Kaspryyk Unreported [2000]
    xxx Vaughan v Vaughan [2002] EWHC 699; [2005] W.T.L.R. 401
    xxxi Brown v Deacy [2002] W.T.L.R. 1083 QBD
    xxxii Masterman-Lister v Jewell; sub nom Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All E.R. 162
    xxxiii Mental Capacity Act 2005
    xxxiv Charles v Fraiser [2010] EWHC 2154 (Ch); [2010] W.T.L.R. 1489; 13 I.T.E.L.R. 455
    xxxv Dew v Clark and Clark (1826)
    xxxvi Banks v Goodfellow (1869-70) L.R. 5 Q.B. 549 QB
    xxxvii Sharp v Adams [2006] EWCA Civ 449; [2006] W.T.L.R. 1059; (2007-08) 10 I.T.E.L.R
    xxxviii Banks v Goodfellow (1869-70) L.R. 5 Q.B. 549 QB
    xxxix Kostic v Chaplin [2007] EHWC 2298 (Ch); (2007-08)
    xl Allen v Emery; sub nom. Cooper (Deceased), Re [2005] EWHC 2389 (Ch); (2005-06) 8 I.T.E.L.R.358; [2005] All E.R. (D) 175 Ch D
    xli Wills Act 1837, Section 11
    xlii Banks v Goodfellow (1869-70) L.R. 5 Q.B. 549 QB
    xliii Mental Capacity Act 2005

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