What is the test for capacity when making a Will?
Since recent developments now mean that video-witnessing Wills can be acceptable, as a last resort, our local solicitors for Wills are considering, more than ever, our client’s capacity when making a Will, and whether there is a tried and tested method for checking that someone has “testamentary capacity”, especially when our team of expert Will drafters are meeting clients face-to-face less frequently.
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The Banks v Goodfellow Test for Capacity
Fortunately, assessing testamentary capacity, that is the capacity of the person making the Will, is based on a test set out in case law. Therefore, it is not a guessing game for our team of local solicitors for Wills to decide whether somebody is able to make a Will, merely a case of applying the correct test and our judgment. Such test can be found in the case of Banks v judgment (1870).
Banks v Goodfellow states that the person making the Will must comply with the following:
1. They must understand the nature of making a Will and the effects of it;
2. They must understand the degree of their Estate, that being the property and other assets (“Property”) that they have, as well as any liabilities, that they will be giving away, or disposing of;
3. They must understand and reasonably foresee any potential claims which they ought to give effect to; and
4. They must not have any disorder of the mind, preventing their use of their natural faculties or their sense of right in giving away their Property by their Will.
The test may seem fairly straightforward, however, our local solicitors for Wills would explain that the level of understanding that the test requires would depend on how complex the testator intends the Will to be, the assets that they own, and any claims that could be made against the Estate. Our Probate Solicitors in Lancaster have discussed claims against an Estate, here.
Assessing Capacity When Drafting Wills
Where it is impractical to obtain medical evidence, or even impossible, the Courts will accept the assessment of a solicitor, as long as it is robust and includes some very carefully worded questions. In addition, solicitors should keep an accurate and detailed record of the meetings with clients, and the discussions had.
This was highlighted by the recent case of Barnaby v Johnson , where the judge commented that if all files kept by solicitors were thorough, like the solicitor’s file in this matter, then it could help to avoid some of the disputes arising in Probate matters and similar claims. Likewise, it would help to make the court confident in the evidence provided, as well as in the professional abilities of the witness concerned.
The Golden Rule
In addition to the rules outlined above, additional guidance was also provided by a prominent lawyer and judge, Lord Templeman. Lord Templeman established the principle known as the “golden rule” in the case of Kenward v Adams (1975).
In the case of Kenward, Lord Templeman gave guidelines for local solicitors for Wills, and others preparing Wills for elderly clients, or those who may have suffered a serious illness. The main point being that, in these cases, the Will should be witnessed and approved by a person who can satisfy themselves of the capacity and understanding of the testator, namely a medical practitioner.
Applying the Banks v Goodfellow Test and the Golden Rule
So, you may be wondering how this works when our local solicitors for Wills take instructions.
Well, at our initial meeting our team will go through a variety of standard questions with our clients: their name, date of birth and address, how long they have resided in a property, whether they have made a Will previously, and details of their family – such as children and grandchildren – or former marriages.
We will also take details of the assets held by the client and any liabilities that they have, to check the extent of their Estate, and to ensure that they are accurately able to provide us with details of this.
Next, we would go through how the client wants their Estate to be divided, including details of any gifts, and who should be appointed to deal with the Estate after the client’s death, also known as the Executor.
In terms of the Golden Rule, this is, obviously, required less often, as many of our clients will approach us when they still have complete capacity to make a Will.
However, as you would expect, there are cases where our client’s capacity could be questioned. We therefore ensure that we are rigorous in our tests of their ability to make a Will, as well as ensuring, if required, that a relevant medical professional has confirmed their capacity.
However, as explained above, in the event that our team of local solicitors for Wills are ever in doubt of a person’s capacity to make a Will, or if your loved one is considering making a Will and they want to ensure that there are no disputes over their capacity after they have died, it is always advisable to seek the witness of a medical practitioner, who can say, with almost certainty, where the testator had capacity.