What is the golden rule of testamentary capacity?
Created: 7/27/2024
What is the 'Golden Rule' of testamentary capacity?
The Golden Rule emerged in the case of Kenward v Adams in 1975. It was said that where a testator (the person making the Will) is elderly or has been ill, the Will ought to be witnessed or approved by a medical practitioner who is satisfied of the capacity and understanding of the testator and then goes on to record this examination and finding; a testamentary capacity assessment.
What is testamentary capacity?
The concept of testamentary capacity is crucial in the legal realm. It determines an individual's mental and legal capability to create or modify a valid will. Should an individual lack testamentary capacity at the time of executing the will, the will becomes invalid.
The test for capacity to execute a valid will is based on case law. A testator must fulfill the following criteria:
- they shall understand the nature of the act and its effects
- they shall understand the extent of the property of which they are disposing
- they shall be able to comprehend and appreciate the claims to which they ought to give effect
- and with a view to the latter, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will on disposing of his property, and bring about a disposal of it which would not have been made otherwise.
Concerns arose after the introduction of the Mental Capacity Act 2005 regarding the interplay between the common-law test in Banks v Goodfellow and the statutory test outlined in the 2005 Act. The Code of Practice that accompanies the Mental Capacity Act created ambiguity, stating that its definition of capacity aligns with existing common law tests, but judges have the freedom to adopt the new definition if they consider it appropriate. Fundamental differences between case law and the Mental Capacity Act include:
- The Mental Capacity Act presumes capacity unless proven otherwise, while case law requires a 'real doubt' to shift the burden of proof to those claiming the testator had capacity.
- The Mental Capacity Act mandates the testator to understand all relevant information and foreseeable consequences, whereas case law only necessitates understanding and reflecting on the claims in the Will.
In Walker v Badmin (2015), it was clarified that the only correct test for testamentary capacity is the one outlined in Banks v Goodfellow. The wording of the Mental Capacity Act suggested that it was designed to enable the court to make decisions for living, incapable individuals, not deceased testators, leading to the conclusion that the Mental Capacity Act does not override or modify existing case law. When assessing capacity to make a will, practitioners must remember that the practical approach to case law does not exclusively focus on actual understanding, and it is not a memory test. Testators may have a poor memory yet still have capacity. Additionally, a testator may have the capability to assess information and understand it, but may choose not to do so and still maintain capacity.