Mental Capacity and Wills: Considerations

If a person lacks mental capacity at the time that the will is executed, it will be invalid. This can lead to disappointed beneficiaries and is liable to lead to conflict.

How then to determine whether a person has mental capacity to make a will?

The law in this area was laid down in the case of Banks v Goodfellow (1870) LR 5 QB 549.

The judge in that case commented, “The question is whether . . the testator was capable of having such a knowledge and appreciation of facts, and was so far master of his intentions, free from delusions, as would enable him to have a will of his own in the disposition of his property, and act upon it.’

In that case, the person seeking to make the will did suffer from some mental health problems, but it was not to the extent that he did not understand what he was doing.

Given that an individual’s mental health and the complexity of a will can vary, what steps should be taken to assess mental capacity?

The Mental Capacity Act 2005 sets out that a person must be assumed to have capacity unless it is established that he lacks capacity. Further, a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

The Law Society’s practice note on mental capacity lists a non-exhaustive list factors that may give rise to a need for extra vigilance in considering whether someone has mental capacity, for example:

  • advanced age, children and young people
  • physical disabilities or ill-health
  • cognitive impairment
  • loss of mental capacity to make relevant decisions
  • mental health problems
  • learning disabilities
  • sensory impairment
  • dementia
  • acquired brain injury caused for example by a stroke or head injury
  • severe facial or other disfigurement
  • difficulty in accessing and/or understanding complex information, for example, because of psychological or emotional factors such as stress or bereavement
  • communication difficulties, including no or limited speech, limited ability to read or write and illiteracy
  • experience of domestic violence or sexual abuse
  • heavy reliance on others (family or friends) for necessary care, support or accommodation
  • potential fraud or undue duress
  • long-term alcohol or drug abuse
  • exposure to financial abuse

Whilst an experienced solicitor will be able to make an assessment of the mental capacity of their client, it is considered good practice, in appropriate cases, to have a suitable medical practitioner, ideally one who already knows the client, to assist in the determination of capacity.

If you have any questions on the matters raised in this article, or are thinking about making a Will or Lasting Power of Attorney, please contact the Probate Department at Harland & Co for further advice.