How do you prove you had what it took?
As a Testator, you are not going to be around to put the record straight on your ability to make your Will. It may be obvious to you and to the lawyer drafting your Will that you are still in possession of your faculties, but if you are unwell, or perhaps choosing to act in an arbitrary fashion, it will be important to leave sufficient evidence of your mental capacity to defeat any potential challenge to your wishes being carried out after your death.
Court challenges on Capacity, Knowledge and Approval
Elsewhere on this site we have looked at a case from the Court of Appeal in Hong Kong, where medical evidence organized by the Solicitor drafting the Will was largely ignored because the doctor had failed to keep a contemporaneous note of his examination. If other professionals could not assess the quality of the examination, the Court could not verify that it had been carried out properly. Other cases this year in the English Courts, up to the Court of Appeal, have looked at capacity and medical evidence, and how much the Testator knew the effect of what he or she was doing by the Will, and approved of the effect. Rather than review what went wrong, here we look at some steps that you should consider taking if there is any likelihood your wishes may be challenged.
So what is "Testamentary capacity"?
The test of capacity is set out in an English law case from 1870, Banks v Goodfellow and has four parts. A Testator must:
(1) understand the nature of what he is doing and its effect;
(2) understand the extent of the property of which he is disposing;
(3) understand and appreciate any claims on him which he should satisfy; and,
(4) in approaching (3) he should not be subject to a disorder of the mind which would influence his decision such that he makes a disposition which he would not otherwise have made.
When might you need to prove it?
If you have been ill, or on medication which might affect your ability to understand as well as you once did, if there are signs that your memory is failing, or something (say a bereavement) has profoundly shocked you or clouded your judgment, then you may need to have your legal professional look at getting a doctor to make an assessment of your mental ability, and provide a certificate that you still have what it takes. You may not want to do this out of concern for your welfare (no one would want a doctor to find they are incapable) or because you do not see the value in the expense. There is no hard and fast rule, and if your Will is straightforward then even if you are not entirely yourself, it may not be necessary. But seek the advice of a trusted legal professional before you dismiss the idea.
The evidence of an experienced lawyer that his or her client had the required capacity at the time the Will was drafted, drawn, executed and witnessed can be persuasive, but it does not guarantee that the Courts will find that you were capable. It will certainly help if the Will is challenged simply on the basis of restrospective medical evidence from doctors who never met you, but a contemporaneous medical examination that is properly recorded is stronger. When put in the same room as the Testator, even experienced lawyers cannot be relied upon to judge mental capacity as well as a doctor.
Friends and family
Any attempt to test for mental capacity is bound to be fraught with problems – some people suffering with dementia may be able to appear capable to friends and members of their family in short bursts of normal conversation. That does not mean that they could meet the requirements of Banks v Goodfellow as to the nature and effect of their actions, or as to their obligations. Others may drift from capacity to incapacity from day to day, and strong evidence would be needed to show that the Testator had capacity at the time the Will was executed.
Disorder of the mind
Medical evidence, properly prepared is particularly important if, on the face of it, the Will seems to be irrational. Leaving everything to the cat's home may seem like a fun threat, but if it means family members are left out of the Will entirely, then the Will is likely to be challenged. Without medical evidence or evidence on the face of the Will that you are not suffering from "a disorder of the mind" under limb 4 of Banks v Goodfellow, it will be hard for the cat's home to prove that you acted rationally.
Do it right
The best approach is to get a lawyer to draft your Will and advise you whether you are likely to need any medical evidence of your capacity. The point of a Will is that it disposes of your property in the way you wanted. It would be a shame to see your wishes set aside - and let the pussy cats go cold and hungry.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.