Creating a will is crucial to ensure that your wishes are respected after you die. For some people, a testamentary capacity assessment may be necessary for the will to be valid.
A testamentary capacity assessment evaluates someone’s mental ability to create a will. It’s essential when there’s a risk of the will being challenged, particularly if the person making the will is elderly, has mental health concerns, or is making significant changes to their will.
Let’s explore the reasons behind this crucial legal safeguard and how it helps protect a person’s final wishes.
What is testamentary capacity?
Testamentary capacity refers to a person’s mental ability to make or alter their will. To pass a testamentary capacity assessment, a person must fully understand what they own (their assets), who they want to leave it to (their beneficiaries), and the consequences of those decisions.
When is a testamentary capacity assessment needed?
Sadly, as we age, our natural faculties can diminish, affecting our ability to make sound decisions. So, an assessment is very important, especially for older people or those with mental health issues, such as dementia.
One of the most common reasons a challenge to a will is upheld is when the deceased is deemed not to have been of sound mind when they made the will. The challengers, usually family members who feel that they should have inherited more, can question the deceased’s mental capacity with a view to having the will declared null and void. In this case, a judge may decide to revert to a previous will or revert to the rules of intestacy.
A testamentary capacity assessment is essential where there is potential for a legal challenge. For example, if an elderly parent suddenly decides to reduce the inheritance of one or more of their children, those children may challenge the will under the Inheritance (Provision for Family & Dependants) Act 1975. In this scenario, a capacity assessment can prove that the deceased (the testator) was in sound mind when they altered their will.
Who determines if a testamentary capacity assessment is needed?
It’s nobody’s official job to determine if a mental capacity assessment is needed. Instead, solicitors, will-writers, family members and other beneficiaries should look out for red flags. For example, if the testator is very elderly, has been diagnosed with a mental health condition, or makes sudden changes to an established will.
As a family member or other beneficiary, if you have any doubts over the testator’s understanding of their new will or suspect a legal challenge could be made, it’s vital to request an assessment.
Sometimes, the will writer or solicitor overseeing estate planning may suggest an assessment if they suspect the testator might not fully understand the extent or nature of their decisions. If there’s any doubt, they may decide to consult a medical practitioner to provide an assessment.
Benefits of a testamentary capacity assessment
There are many benefits of testamentary capacity assessments for both the testator and their beneficiaries.
Ensure legal compliance
A testamentary capacity assessment proves that the testator was of sound mind when making their will. This is crucial if the will is later challenged in court. In this instance, the testator’s solicitor may send a Banks v Goodfellow letter to the will writer, which requests detailed information about the interaction between the will writer and the testator. Keeping excellent records and having a capacity assessment on file can help prove the will’s validity.
Prevent undue influence
If a testator is deemed to have the mental capacity to make a will, there’s no need to have anyone else in the room when giving instructions to a solicitor or Professional Will Writer. That makes it easy to prove that they were not coerced or manipulated into making decisions about your property or estate.
Reduces family conflicts
Family disputes over wills can be deeply painful and divisive. A capacity assessment reduces the likelihood of someone challenging the will and taking it to court, saving a lot of distress.
Fair distribution of assets
While many testators choose to distribute their assets equally, some may not. In this instance, a capacity assessment can provide the necessary legal backing to ensure that the testator’s wishes are honoured, even if they deviate from what might be considered “fair” by other family members.
What are the methods of assessing testamentary capacity?
There are many methods for assessing testamentary capacity, with the aim of evaluating whether an individual has understood the nature and implications of their actions when the will was created.
The most common assessment methods may include:
- Legal Test (Banks v Goodfellow): Established in the 1870 case Banks v Goodfellow, this legal test requires that the individual understands the will, their assets, and potential beneficiaries and be free from any mental disorders.
- Medical Assessment: These evaluations are based on cognitive and psychiatric tests in order to determine mental clarity. They are usually carried out by a medical professional such as a psychiatrist or neurologist.
- Interviews: Direct questioning by a legal team to determine if the individual is making decisions freely and rationally.
- Review of Records and Witness Statements: Medical history and testimonies from people who know the individual well, such as close family friends, often provide additional insights into any potential conditions that might affect their testamentary capacity.
- Legal Documentation: File notes taken during will creation can also help verify mental capacity.
What happens if the assessment determines that you are unable to make a will?
If your assessment determines that a person doesn’t have testamentary capacity, they cannot make a new will, and their previous will remains in place.
If they don’t have a previous will, when they pass away, they will die ‘intestate’, and their estate will be divided by the rules of intestacy. In other words, the deceased’s assets will be divided among their closest relatives based on legal guidelines rather than according to their personal wishes.
That’s why there’s no time like the present to make a will, regardless of your age. You can create a will online today with MW Legal and receive your paperwork within just two days.
Need more information? Get in touch
If you are worried about a potential legal challenge to your estate when you are gone or concerned about a family member’s ability to understand their will, MW Legal is here to help. Contact us today to find out more.
Conclusion
In conclusion, seeking a testamentary capacity assessment is a wise decision that can preserve your legacy for the future. It’s an essential safeguard for ensuring that your will accurately reflects your true intentions and can withstand potential legal challenges. By taking this proactive step, particularly if you are older or making significant changes to a previous will, you protect your estate from disputes and ensure that your wishes are honoured.
Whether it’s preventing undue influence, ensuring legal compliance, or reducing the likelihood of family conflicts, a capacity assessment provides peace of mind for both you and your loved ones.
