Pippa Bavington Testamentary Capacity and the ‘Golden Rule’

Testamentary Capacity and the ‘Golden Rule’

With many important legal documents, particularly wills and trusts, established on the definite intentions of the person creating the contract, it is crucial to verify someone is of sound mind. If this is ever in doubt, it can lead to lengthy disputes between family members over the validity of a person’s will.

Difficulty of Establishing Testamentary Capacity

The recent case of Re the estate of Eva Burns, Burns and Gramauskas v Burns [2016] demonstrates how difficult testamentary capacity can be to assess and whether permitting a will to stand is the right thing to do. The nature of the estate and complexity of the will is a relevant factor. In this case, the Court of Appeal even was in doubt as to whether the Will ought to stand.

When making an initial assessment, a solicitor should have prior knowledge of their client. They should compare any previous wills made and seek to discover reasons for any changes. Non-leading questions should be posed as part of this, to gain an understanding from the client and in turn to establish if the client really understands the effect of the changes and the reasons for them.

How do we Determine Testamentary Capacity?

The leading guidance for testamentary capacity is still that of Banks v Goodfellow (1870), which laid down a 3-part test:

1. Testator shall understand the nature of the act and its effect i.e. does the client know they are making a will, disposing of their property on their death. 

2. Testator shall understand the extent of the property being disposed of. This is relative to the size and complexity of the estate and forgetfulness itself does not necessarily mean a lack of capacity.

3. Testator should be able to appreciate any claims to which they ought to give effect. Essentially this element requires a wider understanding, taking into account the client’s specific circumstances e.g. are there people who have a legitimate expectation to inherit?

It means the testator is exercising an element of judgment, in determining with sound reasons that will benefit or not. The testator must not be suffering from any ‘poisoning’ of the mind, such as a mental illness or undue influence, which prevents them from making his or her own decisions.

When a solicitor is in any doubt as to a client’s testamentary capacity, they should seek an assessment from a medical practitioner – this is the “Golden Rule”. No matter how difficult it may be to broach this with the client or their family, this capacity needs to be established.  

If there is a lack of capacity, a solicitor can then assist the family in terms of advising on the effects of any current will, intestacy provisions, or options via the Court of Protection. 

Challenging a will on the grounds of a lack of testamentary capacity can be an emotional experience. Our solicitors in Essex take the time to understand your concerns and advise you on the appropriate course of action. Call us on 01702 477106 to arrange a free consultation.


Awards & Recognitions

The expertise of our solicitors is regularly recognised by some of the profession’s most distinguished organisations. As well as being a member of a number of Law Society schemes, we have won awards at the Law Society Excellence Awards, the Halsbury Legal Awards and the Modern Law Awards. We have also received recognition in the form of the Lexcel mark of quality, a Legal 500 listing and a place on the shortlist of The Lawyer’s Boutique Firm of the Year.

Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson