Capacity to Make a Will

Introduction to Capacity for Making a Will

• Presenter: Jane from BrightLink Learning Limited.

• Module Focus: CPQ advanced stage: Wills, Probate, and Private Client, Chapter 8 on capacity to make a will.

Key Concepts of Capacity in Will Making

• Eligibility to Make a Will:

  • Must be over the age of 18.

  • Must be of sound mind and acting voluntarily.

• Legal Frameworks:

  • Must comply with the Wills Act 1837 (as amended) and the Administration of Justice Act 1982.

• Validity Requirements:

  • Sufficient capacity, necessary intention, and legal formalities must be met for a will to be valid.

  • If any requirement is unmet, the will is invalid, leading to intestacy rules or terms of previous valid wills.

Checklist for Assessing Testamentary Capacity

• Practical Steps Include:

  • Assessing testamentary capacity.

  • Documenting urgent instructions and attendance notes.

  • Addressing earlier wills and any time limits.

  • Instructions taken remotely.

Requirements of Mental Capacity

• Legal Criteria: Established in Banks and Goodfellow (1870), stating that:

  • Testamentary capacity includes understanding the nature of making a will and its implications, including:

  • Nature of the Act: The will affects distribution of assets posthumously.

  • Awareness of Assets: Must know the general extent of the estate.

  • Moral Claims: Awareness of any moral obligations towards potential beneficiaries, even if they are not included in the will.

  • Mental Disturbance: No mental disorder that distorts perception or judgment should exist.

The Mental Capacity Act 2005 (MCA)

• Application of MCA 2005:

  • Defines how incapacity affects decisions regarding personal affairs.

  • Legal practitioners must assess clients’ capacities when giving instructions for wills.

• Assessment of Capacity:

  • Determine if the client can understand information, retain it, weigh their options, and communicate decisions.

• Medical Opinion: Recommended when capacity is uncertain, especially in:

  • Age over 80.

  • Significant changes to existing wills, especially exclusion of beneficiaries.

  • Communication difficulties due to medical conditions.

Burden of Proof and Legal Authority

• Burden of Proof: Resides with the person propounding the will to prove its validity.

  • The common law presumes mental capacity unless evidence suggests otherwise.

  • In disputed cases, the burden may shift back and forth between the propounder and objector.

• Key Cases:

  • Scammell and Pharma (2008): Established that the common law test must apply.

  • Walker and Batman (2014): Recognized that MCA is not merely a restatement of prior tests but serves a different legal purpose.

Intention and Knowledge in Will Making

• Necessary Intention: Testator must know and approve the contents of their will.

• Presumption of Knowledge and Approval:

  • Presumed if the testator had capacity and executed the will.

  • Inferences can be drawn from suspicious circumstances, requiring further evidence.

• Rebuttable Presumptions: Situations like blindness, illiteracy, or when the will is drafted by beneficiaries raise suspicion needing proof of intention and approval.

Golden Rule for Documenting Capacity

• Golden Rule (Kenward v Adams, 1975): Highlights the essential need for documentation and evidence for the court.

• Consequences of Non-Compliance: Lack of documentation may lead to disputes posthumously, impacting the will's validity.

Conclusion and Recap

• Key Takeaway Points:

  • A testator must be over 18 and have mental capacity to understand the act of making a will.

  • The outline of mental capacity stems from both Banks and Goodfellow and MCA 2005.

  • Knowledge and approval are presumed, but certain circumstances may require additional documentation to overwhelm doubts.

  • Always consider seeking medical opinion to safeguard the validity of the will against potential disputes following the testator's death.