Testamentary Mental Capacity Assessments
What is a Testamentary Mental Capacity Assessment?
In essence, Testamentary Mental Capacity is the ability to create or change a will. In order to have testamentary capacity, there are certain criteria that must be met. When assisting someone to create a will, will writers and solicitors need to satisfy themselves that the person has the mental capacity to create it in the first instance. This check is referred to as the golden rule. The substance of the golden rule is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, they should arrange for a professional to satisfy themselves as to the capacity and understanding of the testator and to make a contemporaneous record of their examination and findings. A Testamentary Mental Capacity Assessment is therefore a crucial tool to determine whether a person has the mental capacity to create a will or had the mental capacity when the will was created. This not only assists solicitors when a person creates a will but becomes a vital piece of evidence if the will is contested later.
If you would like to arrange a Testamentary Capacity Assessment, or to discuss an assessment, please call us on 0330 0435423 or email hello@simplysocialwork.co.uk.
As Independent Social Workers, we are well placed to complete Testamentary Mental Capacity Assessments for your clients and help you meet your golden rule obligations. We have a significant amount of experience as practitioners and have completed hundreds of Mental Capacity assessments since 2009. In addition, we are qualified Expert Witnesses and have experience of being cross-examined.
How is it decide that a person lacks testamentary capacity?
Unlike some other Mental Capacity assessments, the test to determine whether a person has testamentary mental capacity is not the test contained within the Mental Capacity Act. There are several reasons for this, one of which is the golden rule above isn’t entirely compatible with one of the fundamental principles of the Mental Capacity Act; the presumption of capacity. Doubt has also been raised whether legislators intended the Mental Capacity Act to supersede the well established common law principles to determine whether a person has testamentary capacity. Or whether the intention was for parallel tests for different decisions.
The test to determine whether a person has testamentary mental capacity is rooted in common law and has been the same test for over 150 years. The test is called the Banks Test (or Banks v Goodfellow Test) and it ensures that the person creating the will (the testator):
- Understands the nature of the act and its effects (creating the will)
- Understands the extent of the property of which they are disposing in the will
- Can comprehend and appreciate the claims to which they ought to give effect
- Has no delusions influencing their decision. Delusions that would bring about a disposal of it which, if the mind had been sound, would not have been made
As practitioners, we keep up to date with any changes in case law and any changes there may be in the test for testamentary capacity. That way, you can always be assured of a thorough assessment that uses the correct test. As well as applying the correct test for capacity, we ensure that we maintain professional standards and continually update our knowledge of best practice from Social Work registration bodies and membership organisation.
How long will the assessment take?
Once instructed, we aim to complete our Testamentary Mental Capacity Assessment within 14 days of instruction. If, however you require an assessment completed urgently, please let us know and we will do everything we can to meet your timeframes.
What is the assessment process?
As a team of qualified Social Workers, we are skilled at assessing people and this includes Testamentary Mental Capacity Assessment. Once instructed, our bespoke referral form will capture the necessary information required for our assessors to devise the right questions to ask at the assessment visit. We will also request a copy of the will or draft will to help with this process. The assessment visit itself will usually take between 60-90 minutes and the person we are assessing can be supported by a family member or friends for at least part of the visit. It is important, where at all possible, that we spend at least part of the visit alone with the person. It is likely that we will only require one visit to the person before writing our report.
What happens when a person is assessed as lacking capacity?
If the outcome of the assessment is that the person lacks the mental capacity to create a will, our assessment can be used as evidence should you wish to make an application to the Court of Protection to create or change a will on behalf of someone who can’t do it for themselves (statutory will).
