Mental Capacity and Making a Will

To make a valid will, you must have what is legally known as "testamentary capacity" - the mental ability to understand what you are doing and to make informed decisions about your estate. Understanding what this means in practice helps ensure your will cannot be challenged later on the grounds that you lacked capacity to make it.

What is testamentary capacity?

The legal test for capacity to make a will comes from a Victorian case called Banks v Goodfellow. To have testamentary capacity, you must:

• Understand the nature of making a will and its effects
• Understand broadly the extent of your estate (what you own)
• Be able to consider who might have claims on your estate (such as family members)
• Not be suffering from a disorder of the mind that affects your judgment

You do not need to know the exact value of everything you own or remember every detail. What matters is a broad understanding and the ability to make rational decisions.

Capacity at the time of making the will

Crucially, capacity is assessed at the time the will is made, not before or after. Someone may have good days and bad days, particularly with conditions like dementia. A will made during a lucid period can be valid even if the person lacks capacity at other times.

This is why careful documentation of the will-making process is so important.

The golden rule

When there is any doubt about capacity, the "golden rule" recommends that:

• A medical practitioner should assess the person at the time of making the will
• The doctor should record their opinion about capacity in writing
• This medical evidence should be kept with the will

Following the golden rule does not guarantee a will cannot be challenged, but it provides strong evidence to support its validity if a challenge arises.

Conditions that may raise questions

Various conditions may raise questions about capacity, including:

• Dementia (including Alzheimer's disease)
• Stroke or brain injury
• Severe mental illness
• Learning disabilities
• Conditions affecting memory or cognition

A diagnosis alone does not determine capacity. Many people with these conditions retain capacity to make a will, particularly in early stages or with appropriate support.

How capacity is assessed

When taking instructions for a will, a professional will ask questions to assess your understanding. These might include:

• Do you understand what a will does?
• Can you describe broadly what you own?
• Who are your family members and others who might expect to benefit?
• If making unusual provisions, can you explain your reasoning?

The person taking instructions should make detailed notes of the meeting, recording how capacity was assessed and any relevant observations.

Extra safeguards

When capacity is in question, additional safeguards may be appropriate:

• Medical assessment: A doctor provides a written opinion on capacity at the time of will-making
• Contemporaneous notes: Detailed notes of the meeting are kept
• Video recording: In some cases, the will-making process may be recorded
• Witnesses: Additional witnesses may observe the process
• Family notification: In some circumstances, family members may be informed to reduce later claims of surprise

Undue influence

Separate from capacity, a will can be challenged on the grounds of undue influence - that someone pressured you into making particular provisions. Safeguards against undue influence include:

• Meeting the will-maker alone, without potential beneficiaries present
• Ensuring instructions come directly from the person making the will
• Documenting that the will represents the person's own wishes

What if someone lacks capacity?

If someone lacks the capacity to make a will, they cannot do so. Any will made without capacity is invalid.

In limited circumstances, the Court of Protection can authorise a "statutory will" to be made on behalf of someone who lacks capacity. This is a complex, expensive process only used in specific situations.

This is one reason why making a will while you have capacity is so important - and why Lasting Powers of Attorney cannot help with will-making.

Acting promptly

If you have concerns about capacity - whether your own or a family member's - acting promptly is advisable. Making a will while capacity is clear and strong protects everyone.

Many families across Kent, including in Tonbridge and Sevenoaks, have found that addressing estate planning early prevents problems later.

Key takeaways

Testamentary capacity means understanding what a will does, what you own, and who might have claims on your estate. A diagnosis of dementia or other conditions does not automatically mean someone lacks capacity. Following the golden rule and proper documentation helps protect wills from challenge. If you have concerns about capacity, seek professional advice promptly.