The legal test for mental capacity when making a Will remains the test set out in the 1870 case of Banks v Goodfellow.
To make a Will, a person must:
- Understand the nature of making a Will and its effects
- Understand the nature of the estate which they are leaving in the Will
- Be able to comprehend and appreciate the claims to which they ought to give effect – for example their family and dependants
- Not be suffering from a mental disorder which poisons their affections or perverts their sense of right or prevents the exercise of their natural faculties. They must not be suffering from insane delusions, which alter the decisions they make about the terms of the Will.
Mental capacity test when making a Will
If there is, or might be, any question over whether you have mental capacity to make a Will, you should always have an experienced specialist solicitor draw up your Will.
The solicitor may arrange for a doctor to carry out a medical capacity assessment report, if they think this is appropriate. For that report to carry weight, the doctor would need to be advised by the solicitor as to the circumstances of the case, the Will instructions and the legal test for mental capacity.
Often though an experienced specialist solicitor would be able to assess whether you have mental capacity. They would make notes on their file regarding this. If then later on there was any query over your capacity, the solicitor’s assessment that you were mentally capable would usually carry a great deal of weight.
How Nelsons can help
Jane Sutherland is a Partner in Nelsons’ Wills, Trusts & Probate team.
If you would like further advice in relation to this subject, please contact one of our Wills, Trusts & Probate team in Derby, Leicester and Nottingham on 0800 024 1976 or via our online form.