Testamentary Capacity Assessments: A Guide for Practitioners
Created: 8/10/2023
What is a Testamentary Mental Capacity Assessment?
Health and social care professionals undertake a range of mental capacity assessments. One that you may not have encountered quite as often as others is a testamentary capacity assessment. Quite simply, testamentary is related to a will or testament; a testamentary mental capacity assessment therefore is a determination of whether a person has the mental capacity to create or change a will. 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.
How is it decide that a person lacks testamentary capacity?
As a health or social care practitioner you will undoubtedly be familiar with mental capacity assessments that use the test in the Mental Capacity Act (can the person make the specific decision, if not do they have an impairment or disturbance in the functioning of their mind or brain, and is the impairment or disturbance the reason they cannot make the decision?) However, only health and welfare decisions use that test, and some decisions fall outside of the remit of the Mental Capacity Act; this is one such decision. 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.
Can the Mental Capacity Act test be used instead?
No, it is imperative that the correct test is used to assessment testamentary capacity, otherwise the wrong conclusions may be reached because they are different tests. If the test within the Mental Capacity Act is used, the assessment will not be valid and will require a further assessment using the Banks Test above.