When it comes to creating a last will and testament, it is a requirement that the person making the will, called the testator, has the necessary mental capacity to do so.

The test for testamentary capacity was established in the historic case of Banks v Goodfellow (1870) and includes a person must understand:

• understand the nature and effect of making a will.
• understand the extent of their estate.
• understand who might expect to benefit from the will.
• Not be suffering from a mental illness that influences them to make gifts that they would not have otherwise made.

If a will is made without the necessary testamentary capacity the will may be invalid and any previous wills, or the intestacy provisions, will govern the distribution of an estate of death.

In an age where an aging population are leaving often sizeable estates, coupled with legal challenges against wills on the rise, it is essential to ensure that capacity is given due consideration when writing the will.

As solicitors, our specialist will writing team are used to dealing with the issue of capacity. In most cases capacity is clear or is obviously absent, but in other cases this may not be so readily apparent, or the testator be vulnerable and further investigations may be required.  This is especially the case when a person is suffering illness or elderly, with the Courts identifying aged testator as being particularly vulnerable to possible influence. Through case law the ‘Golden Rule’ has been developed.

The Golden Rule

The “rule” is that, in all cases where there is an elderly testator or one who is suffering from (or has recently suffered from) a serious illness, the making of their will should be approved or witnessed by a medical practitioner who satisfies themselves of the testator’s testamentary capacity and who records their assessment and findings.

A medical practitioner may evaluate the testator’s capacity and understanding of the will and to document that the testator is of sound mind when making the will. This would usually involve an assessment of the testator and documenting their findings. This documentation serves as evidence that the testator was mentally capable when creating the will.

A medical practitioner may also act as a witness to the will to document and strengthen that the testator had the necessary capacity at the point the will was signed.

Despite its name, this is not a legal rule but rather good practice to follow to protect a testator. Explaining this to clients whose capacity is in question can sometimes be upsetting to them until it is explained that this rule aims to protect the integrity of their wishes and prevent any potential legal disputes arising from contested wills.

If you would like to make an appointment to start your journey to writing a Will or discuss inheritance tax or estate planning, then please contact your local Clark Willis Solicitors office, in Darlington or Northallerton (01325 281111 or 01609 765765) or email enquiries@clarkwillis.co.uk.