What is Testamentary Capacity?
What is testamentary capacity?
Testamentary capacity is the legal term used to describe a person’s legal and mental ability to make or alter a valid will. A critical ethos to our assessment is ‘an unwise or irrational decision is not necessarily an incompetent decision’. The mental capacity required to revoke a will is the same as that required to make one. Testamentary capacity requires a legal test known as Banks v Goodfellow.
The Process we follow for assessing testamentary capacity is:
1. Check with the client the following:
understanding the information relevant to the decision
retaining the information (even if only for a short period)
using or weighing that information
communicating the decision (by any means)
2. We have a duty to record the client/testator’s answers in detail – for our own records
Check facts, such as the extent of the estate
Ask the testator why potential beneficiaries are included or excluded
Assess the;
Understanding of the nature of the will
understand the extent of the property of which he/she is seeking to include in the Will
recognition of the extent and not the value of the property is relevant to the assessment.
3. It is not necessary that the testator behave in a wise, our personal thoughts do not influence our decision-making process on capacity.
4. Although it is appropriate to explain in broad terms the nature of will making and remind the person of the extent of their assets, the person must be able to appreciate and comprehend the claims to which he ought to give effect without any assistance.
5. If a person lacks the capacity to make a Will, we will complete the Court of Protection (COP3) form for the client so a statutory will can be applied for. Whether this is done is a matter for the person’s solicitor bearing in mind the cost of such an application.
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