Mental Capacity To Make Or Revoke A Will

Often we talk about the capacity required to make a will or to execute a Lasting Power of Attorney (LPA).

When providing instructions for the preparation of a will, the person making a will (the testator) needs to be of “sound mind” and principally this means having a sound mind generally, with sufficiently good memory and a decent understanding of the legal consequences of the provisions. A testator has to demonstrate the same level of capacity when the will is executed, so at the point at which it is signed and dated before a suitable witness.

The legal system makes a presumption, that a testator is sane at the time a will is executed. If there is a challenge to a testator’s capacity, the propounder of the Will (for example an executor named in the will) must prove that the testator had sufficient mental capacity both when the will was created and also when it was executed.

The same level of capacity is required when a person executes an LPA.

The starting point in determining a person’s capacity is to consider the statutory test set out in the Mental Capacity Act 2005. The Act tells us that the concept of capacity is “decision-specific” and that it is assessed according to each decision that needs to be taken. The Act provides a functional approach to the situation where a person lacks the sufficient capacity, notably stating that an individual will lack capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. It makes no difference whether the impairment or disturbance is permanent or temporary.

Elsewhere in the Act, a person is legally understood to lack sufficient capacity to make a decision if he or she is unable to understand the information relevant to the making of a specific decision, to retain that information, to use or weigh that information up as part of the process of making the decision, or to communicate his or her decision (through speech or sign language or by any other comprehensible means).

The obvious conclusion from this must be that we should not delay taking sensible steps to put suitable legal arrangements in place for both our later years and for after we are gone. When we know we have a sufficient level of capacity, one that meets or exceeds the legal threshold in relation to capacity, we should be taking positive action. Disputes in relation to capacity, for example following the death of a loved one, can be wide ranging, emotionally harrowing and extremely expensive both for the complainant and the affected estate. Whilst we have capacity, we should take expert legal advice and enjoy piece of mind. Specialist practitioners of course can also address concerns in relation to the questionable capacity of clients by involving medical practitioners able to offer an expert opinion.

If you are faced with a dispute involving issues that surround capacity then contact Chris Fielding in the Dispute Resolution team on 01603 723786.

For further information about preparing a will or LPA, please contact the Fosters Wills, Trusts & Probate Team on 01603 620508 for specialist advice.