Testamentary capacity to make a Will and LPA

When clients come to us to make a Will our private client solicitors have a responsibility to check testamentary capacity – this is not something we want clients to be put off or insulted by, it is something we are legally bound to do.

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.

Lucy Roughley a legal adviser in the Pearson Solicitors Private Client department explains the testamentary capacity asseement process:

Banks v Goodfellow

The Banks v Goodfellow (1870) test, which sets out key legal criteria when making a Will, and I will also consider the Mental Capacity Act 2005 if relevant.

Our clients, i.e. the testator, don’t need any legal knowledge, or indeed to recall their assets with a high degree of precision, what we are looking for is that they have a capacity to understand what their Will means and the effect of it and that they can make necessary judgements.

Testamentary Capacity assessment when making a Will

We will assess the testator’s behaviour, coherence, and memory in meetings. If the testator has received a diagnosis for a form of dementia, I will ensure questions are asked as simply as possible and also go back to ask the same questions again. I record answers word for word so this can also be retained as evidence.

Key factors to solicitors consider:

1. Understanding the Nature of a Will
   The testator (person making the will) must understand that they are making a Will and that it determines what happens to their estate after death.
2. Awareness of their Estate
   They should have a general understanding of their assets (e.g., property, savings, possessions) and their approximate value.
3. Understanding the claims of beneficiaries
   The testator must be aware of those who might expect to inherit (e.g., family, dependents) and the consequences of including or excluding individuals.
4. Free from mental disorders which affect decision-making
   The person must not suffer from delusions or conditions that impair their ability to make rational decisions about the will.

Golden Rule (for elderly or vulnerable testators) is that sometimes an independent medical opinion from a GP or specialist is needed if there are concerns about mental capacity. I will also advise this where the testator is excluding a family member who may be able to dispute their Will (such as an estranged child or spouse).

Our solicitors will always document discussions to protect against future challenges and protect the testator’s wishes from Will disputes.

If there is any doubts about mental capacity, a solicitor may refuse to draft the Will or insist on a formal independent medical assessment.

Testamentary Capacity assessment when making Lasting Powers of Attorney

The testamentary capacity assessment for making a LPA is similar to a Will.

When determining whether somebody has the capacity and understanding to make Lasting Powers of Attorney, we need to check whether they understand:

• where they live - whether they own/rent their property
• what bills they pay each month – utilities, household, food etc.
• whether they have a bank card and what they will use it for
• what bank accounts/investments they have
• whether they receive an income/pension/government support
• that there may be a time when they cannot make a decision for themselves (they could be very unwell or have developed dementia)
• what their views on certain life-sustaining treatments are – resuscitation, transplants etc.
• the authority their chosen attorneys will have and the trust they must have in them
• why they have chosen the attorneys they have and why

Where capacity is unclear, a referral to an independent assessor will be made in order to protect the client and their wishes.

At Pearson Solicitors we also recommend that people who may expect to be included as Attorney (who aren't) are notified of the application, to prevent them disputing the LPA in the future.

What happens if you lack capacity to make a Will or LPA?

If somebody does not have the necessary understanding to make a Will, I am unable to support them. If the person lacks capacity to make LPAs, we are able to assist their family with a court of protection application so they can manage financial affairs and in some cases, make decisions relating to their health and care.

How can we help?

For legal advice on making a Will or a Lasting Powers of Attorney contact our private client solicitors on 0161 785 3500 or email enquiries@pearsonlegal.co.uk

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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.