Protect your will with a testamentary capacity test
Making a will is one of the most important steps in planning for the future. However, for it to be legally valid, the person writing the will (the testator) must have testamentary capacity. This means they must be of sound mind when they create and sign the will.
If there is any uncertainty about the testator’s mental capacity, it is a good idea to carry out a testamentary capacity assessment. This legal test involves a thorough assessment of the will writer’s mental capacity, after which you will receive a formal report.
This report can serve as critical evidence to protect a will’s validity if it is ever contested on the grounds of mental capacity.
What does testamentary capacity mean?
“Testamentary capacity” is a term legal professionals use to describe someone’s mental ability to make a valid will. It states that the person making the will must be of sound mind. They must have a good understanding of what their assets are, who may inherit them and appreciate the consequences of their choices.
When it comes to assessing capacity, you must consult a qualified professional such as a doctor or solicitor. They can conduct a testamentary capacity assessment to determine whether the testator (the will writer) can make informed decisions without cognitive impairments or external influences. This helps safeguard their wishes and counter future claims should they arise.
How does mental capacity affect will writing?
If it can’t be proved that someone had the mental capacity to make a will, it may not hold up in court. Family members or other parties could bring court proceedings to challenge the will, and if they are successful, the will may be deemed invalid. This is obviously very stressful for those involved, and the final outcome may not reflect the deceased’s wishes.
If you are in doubt about whether a loved one has the mental ability to write a will, arrange for a testamentary capacity assessment as soon as possible. It will serve as strong evidence to uphold the will’s validity if it is later challenged in court.
What is the criteria for assessing testamentary capacity?
Testamentary capacity is the legal term for a person’s mental ability to make a valid will. The Mental Capacity Act 2005 deals with mental capacity in everyday life but not in relation to making a will. Instead, we look to the original case law in Banks v Goodfellow (1869) for guidance. This case set the key principles for testamentary capacity that we still use today.
To meet the legal requirements for establishing mental capacity, the testator—the person making the will—must be able to demonstrate a clear understanding of the following:
- The nature and purpose of their will: The testator must be aware that they are creating a legal document that will distribute their assets after they pass away.
- The extent of their assets: They should be able to identify the property, savings, and other assets they wish to leave.
- Who their potential beneficiaries are: The testator must be aware of those who may be entitled to their estate, including spouses, children and other family members. Even if certain people are deliberately excluded, the testator must still be aware of their existence.
By meeting these established criteria, the testator not only makes their intentions clear but also safeguards their will against potential legal challenges, ensuring that their wishes are respected.
Who can assess testamentary capacity?
Several professionals are qualified to assess if a testator has sufficient mental capacity to make a will, including:
- Doctors or medical professionals: GPs or specialists like psychiatrists often provide formal mental capacity assessments, particularly for cases involving cognitive impairment or serious illness.
- Solicitors and other Legal professionals experienced in will writing routinely assess a testator’s capacity as part of their process.
- Mental health experts: Psychiatrists or psychologists can be brought in for more detailed evaluations in complex situations.
Our testamentary capacity assessment process
At MW Legal Services, we are committed to ensuring that your will is legally valid and secure. Our process for assessing testamentary capacity is straightforward and designed to give you peace of mind.
Here’s how we do it:
During the will-writing process
Our experienced professionals will assess testamentary capacity at every stage, whether you use our simple online will-writing service, request a home visit, or video call. This assessment is then recorded and forms a contemporaneous record that can be used as a reference in the future.
Online mental capacity interview
If you or a loved one have any concerns about mental capacity, we strongly recommend taking our online mental capacity interview. This interview will be stored securely and confidentially and can be used as evidence if the will is ever challenged.
Specialist referrals
If there are any serious concerns about the testator’s mental health, we can refer you to a medical or psychiatric specialist for a full assessment. This means that your will will be protected by robust evidence and will be less likely to be challenged in the future.
Tailored solutions
We understand that every individual’s circumstances differ, so we offer solutions tailored to your needs. Whether you need a simple assessment or a detailed testamentary capacity report, we are here to help you achieve your goals.
Get in touch with us today
If you’re worried about a loved one’s testamentary capacity or want to make sure your own will is secure, we’re here to help. At MW Legal Services, our friendly and experienced team will guide you through the process, whether you’re looking for a testamentary mental capacity assessment, advice on a statutory will, or general support.
Contact us today to find out how we can help you assess capacity and create a legally valid will. With our expertise, you can rest easy knowing your wishes will be respected and your loved ones protected.
