Mental capacity: What is it and why do I need it to prepare a Will?

The requisite level of capacity is required to enter into the relevant legal transaction being discussed, and there are different tests for capacity to be met depending on what you wish to do. Legal tests for mental capacity are different to medical tests for mental capacity. 

 

The usual test for mental capacity is by reference to the Mental Capacity Act 2005. However, to put in place a Will a common law test applies as set out in the case of Banks v Goodfellow 1870. 

 

Banks v Goodfellow states that for someone to put in place a Will the individual must: 

 

• Understand they are making a Will and the effects of this. 

• Understand what their estate is made up of and the value of their assets. 

• Understand and appreciate who could make a claim against their estate/who they have a moral obligation to provide for. 

• Not be suffering from any ‘disorder of the mind’. 

 

Particular care should be taken when dealing with elderly or ill individuals when assessing capacity and approved/witnessing a Will. This is known as the ‘golden rule’. 

 

It is important to consider capacity when a client wishes to put in place a Will, as without mental capacity, the Will is not legally valid. The presumption is that everyone has capacity unless it is established otherwise. 

 

Capacity can be challenged at the time of a legal transaction or subsequently. In the case of a Will, this is usually after the individual has passed away. 

 

We assess our client’s mental capacity to put in place a Will in all cases by: 

 

• Discussing your circumstances and background. 

• Reviewing any previous Wills you have and discussing the reasons for any changes. 

• Asking questions about your medical history and any medications which may affect your decision making. 

• Discussing the make up and value of your estate. 

• Discussing the rationale for your decisions in your Will and pointing out and discussing any potential issues with these decisions. 

 

There can be long-term and short-term reasons why someone might lack capacity. 

 

Reasons why someone might lack capacity include: 

 

• Dementia or Alzheimer’s 

• Parkinson’s 

• Severe mental health issues 

• Severe learning disabilities 

• Damage to their brain, such as through a stroke, an injury or substance misuse 

• Memory loss 

• Bereavement 

• Psychosis 

 

It does not mean that someone lacks capacity if they have a diagnosis of any of the above conditions. Loss of mental capacity can also be temporary and can be regained. 

 

Capacity can be assessed by us, or it may be sensible to instruct a professional to carry out a mental capacity report to support your making a Will on the terms you wish. 

 

The purpose of obtaining a mental capacity report can be to: - 

 

• Confirm you have capacity to put in place a Will. 

• Help to robustly defend any claims against your estate after you have gone if you have left your estate unequally or departed from the terms of a previous Will. 

• Help to confirm that you are not acting under undue influence/pressure. 

 

You can assist us to put in place your wishes and protecting your estate against any claims by:- 

 

• Ensuring to give us full and frank information at our meetings which is always confidential. 

• Provide us with details of medical issues, diagnosis information and details of your medication. 

• Provide previous copy Wills. 

• Alert us to your full family tree, details of any estranged members and circumstances of any ‘fall out’. 

• Allow us to obtain a mental capacity report if we deem this necessary. 

 

Avery Walters can assist with simple, mirror or trust Wills to include mental capacity assessments, information of claims against your estate and inheritance tax advice. 

 

At Avery Walters our team of specialists can also provide advice about Lasting Powers of Attorney, Trusts and estate administration and more.