Published on: 31st October 2022

Mental Capacity

When you give instructions to a Will Writer regarding your Will you might be surprised if the Will writer starts talking about your Doctor and mental capacity.

If someone feels they have not been sufficiently provided for by you in their Will then they may decide to challenge your Will. And one of the ways to challenge a Will is on the grounds of lack of mental capacity. So how does a Will writer judge whether you have sufficient mental capacity to give instructions such that the Will will be judged valid?

The classic test for mental capacity to give instructions for a Will was formed in 1870 in a case known as Banks v Goodfellow. The judge remarked that it is essential to the exercise of such a power that a testator (a) shall understand the nature of the act and its effects (b) shall understand the extent of the property of which he is disposing (c) shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object (d) that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

Your Will writer will be checking that you know (roughly) your assets and your family tree and if (s)he has any concerns they will start to discuss getting a medical report either from your Doctor or a specialist agency.

Some clients become offended when the Will writer suggests obtaining a medical report. However, please remember that this is for the benefit of you and your chosen beneficiaries. A medical report recording that you had sufficient mental capacity might deter someone from making a claim against your Will. If your Will writer does suggest a medical report then consider it as part of your overall Estate Planning strategy.

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If you wish to give instructions or require general information about our Wills, Lasting Powers of Attorney, or Trusts then we will carry out a telephone or Zoom appointment. However, if you wish to give instructions to one of our Consultants and you feel that you can only do this at a Face to Face meeting we are offering, at our Consultant’s discretion, a limited number of Face to Face appointments in most of the areas we normally cover (subject to Government advice). To see the areas we normally cover please click here. To arrange an appointment please telephone 01732 868190 or click here.

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