Testamentary Mental Capacity Assessments
What is a testamentary mental capacity assessment?
When assisting someone to create a will, will writers and solicitors need to satisfy themselves that the person has the mental capacity to create it in the first instance. This check is referred to as the golden rule. The substance of the golden rule is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, they should arrange for a professional to satisfy themselves as to the capacity and understanding of the testator, and to make a contemporaneous record of their examination and findings. A testamentary mental capacity assessment is therefore a crucial tool to determine whether a person has the mental capacity to create a will or had the mental capacity when the will was created. This not only assists solicitors when a person creates a will but becomes a vital piece of evidence if the will is contested later.
As an independent consultant Social Worker, I am well placed to complete testamentary mental capacity assessments for your clients and help you meet your golden rule obligations. I have a significant amount of experience as a practitioner and have completed hundreds of mental capacity assessments since 2009. In addition, I am a qualified expert witness and have experience of being cross-examined.
How is it decide that a person lacks testamentary capacity?
Unlike some other mental capacity assessments, the test to determine whether a person has testamentary mental capacity is not the test contained within the Mental Capacity Act. There are several reasons for this, one of which is the golden rule above isn’t entirely compatible with one of the fundamental principles of the Mental Capacity Act, the presumption of capacity. Doubt has also been raised whether legislators intended the Mental Capacity Act to supersede the well established common law principles to determine whether a person has testamentary capacity. Or whether the intention was for parallel tests for different decisions.
The test to determine whether a person has testamentary mental capacity is rooted in common law and has been the same test for over 150 years. The test is called the Banks Test (or Banks v Goodfellow Test) and it ensures that the person creating the will (the testator):
- understands the nature of the act and its effects
- understands the extent of the property of which they are disposing in the will
- can comprehend and appreciate the claims to which they ought to give effect
- has no delusions influencing their decision. Delusions that would bring about a disposal of it which, if the mind had been sound, would not have been made
As a practitioner, I keep up to date with any changes in case law and any changes there may be in the test for testamentary capacity. That way, you can always be assured of a thorough assessment that uses the correct test. As well as applying the correct test for capacity, I ensure that I maintain professional standards and continually update my knowledge of best practice from Social Work registration bodies and membership organisation.
How long will the assessment take?
Once instructed, I aim to complete my testamentary mental capacity assessments within 14 days of instruction. If, however you require an assessment completed urgently, please let me know and I will do everything I can to meet your timeframes.
What happens when a person is assessed as lacking capacity?
If the outcome of the assessment is that the person lacks the mental capacity to create a will, my assessment can be used as evidence should you wish to make an application to the Court of Protection to create or change a will on behalf of someone who can’t do it for themselves (statutory will).