Why Am I Being Asked To Get A Capacity Assessment When Making A Will?
In her latest Timms blog, Wills and Probate Solicitor Charlotte Day discusses the question “Why Am I Being Asked To Get A Capacity Assessment When Making A Will?”…
When someone makes a Will, their capacity to prepare the Will will be assessed by the Solicitor taking instructions during the course of the initial meeting. This is often done quite subtly during the course of normal conversation when you will be asked about family circumstances, your assets and then your Will instructions.
However, there are occasions when we take Will instructions from a client when we feel it appropriate to also obtain a testamentary capacity assessment from a medical professional. This can take clients by surprise, but there are good reasons for having one.
Why Does Capacity Matter?
For a Will to be validly made, the person making it must have the required capacity to do so.
What Is The Test For Mental Capacity?
The test for capacity is set out in the case of Banks v Goodfellow and means that you must be able to:
- Understand the nature of making a Will and its effects.
- Understand the extent of the property of which you are disposing.
- Be able to comprehend and appreciate any claims that may be brought against your estate.
- You must also have no disorder of the mind that perverts your sense of right or prevents the exercise of your natural faculties in disposing of your property by Will.
Why Might I Need To Be Assessed?
There are a variety of reasons why we might feel it necessary to obtain medical evidence of your capacity to make or change your Will. It could be because you have made us aware of a diagnosis which is known to affect someone’s mental capacity i.e. dementia. Sometimes we may just pick up during our meeting that there may be some issues with your memory such as forgetting your children’s names, the details of your assets or even your own personal details.
There are other occasions where we may advise you to obtain a mental capacity report, even where your capacity is not in doubt. This might be because you are leaving a spouse/partner or child etc. out of your Will, who you might ordinarily have been expected to provide for. Having medical evidence on the file that you have capacity at the time of making or changing your Will should reduce the chances of a successful challenge to your Will later on by someone who has been left out.
The Golden Rule
In addition, Solicitors are obliged to follow the ‘Golden Rule’ which means that where a person making a 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 person making the Will and who then goes on to record this examination and finding.
How Do I Get An Assessment?
If your Solicitor considers it appropriate to get an assessment, they will offer to write on your behalf to your GP. Sometimes GP’s don’t have time to carry out the assessments so an appointment with a private consultant might be offered instead.
What Information Does The Assessor Need?
If we do need to write away for a capacity assessment, we will need to tell the assessor about your personal circumstances, why we feel an assessment is necessary, about your assets and what provisions you wish to make in your Will. Of course, this is all confidential information so the disclosure of the same will be discussed with you in advance. It is important that they have all this information so that they can conduct a thorough assessment and record their findings.
What Happens If I Don’t Have Capacity To Make My Will?
If the assessment comes back to say that you don’t have capacity to make a Will, then you will be unable to make a new Will. This means that any previous Will you may have made will still stand, unless you revoked it when you had the capacity to do so. If there is no existing Will, then the Intestacy Rules will apply on your death and your estate will pass to family members under those rules.
What Happens To The Assessment?
Once the assessment has been carried out it will be sent to the Solicitor preparing your Will. Providing that it confirms that you do have capacity then it will simply be placed on your file and you will be able to go ahead with signing your Will.
Hopefully after that the capacity assessment will stay on the Will file never to be seen again.
However, if a challenge is made to your Will then the Will file may be released to the person making the challenge, or their Solicitor, under a Larke v Nugus request. If this is the case, then the person challenging your Will and their legal personal representatives will want to review the capacity assessment. If a thorough assessment has been carried out, then this may put a stop to the challenge to your Will at this stage. If the matter does progress, then the capacity assessment could be used as evidence in a later Court case.
How Can Timms Help?
If you have any questions about making your Will or capacity assessments, please do not hesitate to contact me on 01283 214 231 or via email at c.day@timms-law.com. Alternatively, you can visit the Wills and Probate page of our website here.
September 2022