Assessing mental capacity during lockdown

Lockdown, and the need for social distancing, has resulted in some very particular challenges for those wishing to make a Will. We have previously considered the government’s new rules on witnessing Wills remotely and the resulting increased potential for fraud and undue influence. But there is another issue causing concern for solicitors – assessing testamentary capacity.

What is testamentary capacity?

Testamentary capacity is the legal term used to describe a person’s ability to make or change a valid Will. It encompasses both legal capacity, eg the requirement to be over 18 years of age, and mental capacity. If a person lacks testamentary capacity at the time the Will is executed (ie signed and witnessed), the Will is invalid.

The criteria for assessing testamentary capacity are well-established, having been set out way back in 1870 in the case of Banks v Goodfellow. For a Will to be valid, the person making it (the testator) must:

• understand the nature and effect of making a Will;
• have a comprehension of the extent of the property disposed of by the Will;
• be able to comprehend and appreciate claims to their property, to which they ought to give effect in the Will;
• not be suffering any mental disorder preventing their “sense of right”, or the exercise of their natural faculties resulting in disposing of their property by Will in a way that “if the mind had been sound, would not have been made.”

Challenging testamentary capacity

The starting point for any issue relating to mental capacity is the Mental Capacity Act 2005, which says that an adult must be assumed to have mental capacity unless it is proved otherwise.

If a Will is rational, complies with the requirements of Section 9 of the Wills Act 1837, and the testator was a person whose mental capacity was not in doubt, the presumption is that the Will is valid.

The burden of rebutting that presumption therefore lies with anyone challenging the Will. If they can establish there is a real doubt over the testator’s mental capacity, the person(s) seeking to prove the Will, usually the executors, must then be able to show that the testator had capacity at the time the Will was executed.

The golden rule

The test set out in Banks and Goodfellow was subsequently enhanced in another case, Kenward v Adams (1975). In his judgment, (the then) Mr Justice Templeman established what has become known as the “golden rule”:

“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding.”

The judge’s phrasing here means that the rule is not mandatory and in yet another case, Sharp v Adam (1975), Lord Justice May, said:

“The golden rule is a rule of solicitors’ good practice, not a rule of law giving conclusive status to evidence obtained in compliance with the rule.”

Availability of medical practitioners

Understandably, with continuing extreme pressure on the NHS and the need for social distancing, the availability of medical practitioners to carry out capacity assessments has all but evaporated. The same applies to them witnessing Wills.

Where capacity assessments cannot be obtained, the court is usually happy to accept assessments by solicitors, provided those assessments are robust and include carefully worded questions. Solicitors must be alert for any sign that the testator may lack capacity. They are not medical professionals, but to give a flavour of what is expected, the following is taken from an article offering guidance to doctors who are asked to carry out capacity assessments for Wills:

“Numerous issues need to be considered when assessing capacity for a will… The nature and severity of the illness, effects on cognition…, effects of medication, urgency, psychological and emotional factors, interactions with carers, family and lawyers…”

Confusion, distraction, drowsiness or being overly emotional are just a few of the many signs that may indicate an underlying condition, or even the effects of medication, any one of which might have a bearing on mental capacity. Solicitors should share any concern with the testator and judge whether they are happy with any explanation provided. Certainly, these are all strong cues for the solicitor to begin asking some carefully worded questions.

Notes, notes, notes…

It also underlines the fundamental importance of solicitors making and retaining contemporaneous, detailed, accurate and legible notes. To repeat Lord Justice May’s comment above, “[t]he golden rule is a rule of solicitors’ good practice”, and in the absence of a medical practitioner, notes are the only way a solicitor can help to protect a Will from challenge.

Video conferencing

And of course, in most current cases, this is all taking place remotely over a video conferencing platform. Not only does that arguably make it more difficult to pick up on the more subtle signs that a client is in difficulty, but some people are just uncomfortable appearing on camera and/or around technology.

On a related issue, solicitors should take steps to ensure that any video conference is GDPR compliant.