New year, new will: testamentary capacity (a refresher)

The start of a new year tends to bring with it a seasonally-revived resolve to be more organised. This can manifest itself in various ways and often includes making or updating a will.

In 2021, this will be done with the strangeness of 2020 in hindsight. One effect of that unusual year was to draw our attention to our health – both our physical health, as a result of the virus itself, and our mental health, which may have been affected by the social distancing measures and the reduction in contact with others, including the effect of this on our memories and cognitive functions.

Assessing testamentary capacity

For once, the legal industry is ahead of the game in the field of mental capacity, particularly as far as will-making is concerned. Testamentary capacity cases go back several hundred years and show that, if sufficient proof can be provided that a testator lacked testamentary capacity at the time they made their will, the will can be rendered invalid.

Sometimes it is obvious whether or not somebody has testamentary capacity but caution must be exercised within the sizeable grey area. The common law test for testamentary capacity is found in the case of Banks v Goodfellow: at the time a testator makes his will, he must:

• understand the nature of making a will and its effects;
• understand the extent of the property of which he is disposing;
• be able to comprehend and appreciate the claims which might arise as a result of the contents of his will; and
• have no ‘disorder of the mind’ that alters the way in which he might ordinarily have distributed his property under his will.

This test is relatively broad and does not require an especially detailed level of understanding but it does require a testator to be capable of an element of speculation. For example, if a testator wished to leave her whole estate to Child A and nothing to Child B, it would be necessary for her to contemplate that Child B may be unhappy and seek to challenge her will after her death (on capacity grounds or otherwise). The testator might consider this risk and go ahead as planned anyway; the key is that she understands the risks at the time she makes her will.

Red herrings

Anybody wishing to challenge a will on capacity grounds must be able to provide evidence that the testator lacked capacity at the time they made their will. It is easy and natural to make assumptions one way or the other about this based on face value but, in reality, it is not often so clear-cut. For example, capacity can fluctuate: somebody with a condition such as schizophrenia might have more lucid periods during which they might have capacity to make their will. On the other hand, somebody beginning to struggle with memory loss might pretend to remember or understand things to avoid drawing their relatives’ attention to their deteriorating memory.

It is also not right to assume that somebody with a diagnosed mental health condition lacks capacity across the board. The testator in Banks v Goodfellow suffered from paranoid delusions but not so badly as to affect his ability to make decisions about the contents of his will, which was upheld as valid.

Any potential challenger should also remember that a person is not to be treated as unable to make a decision merely because he makes an unwise decision (s1(4) Mental Capacity Act 2005) and ask themselves whether the underlying reason they are seeking to challenge the will is simply because they are unhappy with its contents.

What precautions can I take to avoid my will being challenged?

The scope for capacity challenges can be mitigated in various ways. One option is to explain the decisions you have made in your will in an annexed letter of wishes. This might set out, for example, that you have chosen to leave your estate to your children in unequal proportions to reflect that you have already helped one of them out financially during your lifetime. This can help reduce the risk of another beneficiary asserting that the reason for your decision was a lack of capacity or understanding.

Another way is to plan early and make a will whilst there are no questions about your capacity. Losing capacity can be unpredictable and can occur at any time, not just in old age. It can also sometimes be useful to tell your relatives what is in your will and why, so that any inequality or unexpected legacies do not come as a surprise.

For decisions to be taken during your lifetime, you could consider making a lasting power of attorney (LPA) and appointing trusted family members, friends or professionals to handle your financial affairs and/or assist with decisions about your health and welfare in the event that you lose capacity. An LPA can lie dormant until it needs to be used, so it does not sign away your privacy or give your attorneys an automatic right to make decisions for you without consulting you.

2021 wills

These comments should not cause reviewing and updating your will to move down (or off) your ‘To Do’ list for 2021. Testators might be comforted to know that it is generally not straightforward to prove a lack of testamentary capacity, as capacity is presumed unless evidence to the contrary is produced.

Nevertheless, those thinking about making or updating their wills in 2021 should take advantage of the renewed motivation January brings to such tasks, whilst considering taking necessary precautions so that the scope for any capacity challenges can be mitigated.

Please contact Judith Swinhoe-Standen or a member of our private wealth team if you would like to discuss anything mentioned in this article.