Earlier in this article we looked at the MCA 2005 xxxiii and section 1 which states that it must be assumed that the person has mental capacity unless it is otherwise proven, however, as mentioned earlier this section does not have a direct burden on testamentary capacity. After seven years of uncertainty there finally seems to be a definitive answer as to whether the correct test for capacity in relation to making a Will is the traditional common law test of Banks v Goodfellow or the test under the Mental Capacity Act 2005. The main rule when trying to prove the testator had capacity is that (the propounder) must prove that it was properly signed, witnessed and at the time of execution the testator had the capacity to make the document. Even if the medical records are not supportive of a claim concerning mental capacity, if there are witnesses confirming the individual lacked such capacity, it may be possible to contest a will. The first is with regard to age and as we have seen, that only in certain circumstances a person who is under 18 years of age can make a will this is if they are undertaking a certain activity xli. This states that a testator must have attained the age of 18 years old to be legally entitled to make a will. The Mental Capacity Act 2005 Of course unfortunately, there may be times when a person is deemed to have lost capacity and not in the mindset to be able to amend or create a Will. One of the grounds for challenging the validity of a will is that the person who made the will did not have the relevant mental capacity to understand his actions. For example, if you suffer from a degenerative condition such as dementia, it is advisable that you seek medical assessment while making your will. However, weighing the evidence in the period up to the testator’s death this had shown he clearly lacked the ability with regard to his decision-making powers as required by a testator. If the presumption is rebutted, it is then up to the propounder to prove the testamentary capacity of the testator. The recent BC Supreme Court decision in Moore v Drummond illustrates how the law evaluates a person’s mental capacity to make a will. The rules which are derived from Banks and Goodfellow xxiv have formed the basis of section 3 xxv of the MCA 2005. To succeed with contesting a will, it must be shown at the time the will was executed, the testator did not have the capacity to make a will. If any doubt or suspicion exists with regard to the capacity of a client proposing to make a will, then we should involve a medical practitioner to evaluate the testator. Or perhaps they were losing their memory or had other cognitive difficulties associated with growing old. In the case of mental capacity without a formal capacity assessment, a person's mental capacity to make a Will or power of attorney is more subjective and can be open to debate. The above is often referred to as the Golden rule and if this not followed it will not instantly mean that the will is invalid as can be seen in the case of Allen and Emery xl. Mental Capacity to Make a Will My mothers’ aunt recently died from Alzheimer’s. It is not the case that a testator has to have a detailed knowledge of all of his assets/monies. In the case of making a Will or power of attorney, age is a statutory condition precedent. signed in the presence of two witnesses). xxx Vaughan v Vaughan  EWHC 699;  W.T.L.R. The testator is not necessarily required to understand the precise legal machinery in the will but will need to understand its broad effect. The effect of the burden of proof was that a person who alleges that a will was within a lucid interval had to prove it was within such a lucid interval. Those testators who can be awarded the above status are the following individuals: 1. 549 QB, The third limb test claims which ought to be bought. Alzheimer’s. Sufficient Mental Capacity to Make a Will in Michigan. However, as professionals we have experienced meetings with clients who can from day to day have varying levels of capacity especially with the more elderly. They are made by the Court of Protection under the Mental Capacity Act 2005. Powers of attorney can be made at any time when the person making it has the mental capacity to do so, provided they're 18 or over. a) A person is assumed to have capacity until the contrary is established on the balance of probabilities; b) Not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success; and c) Not to be treated as unable to make a decision simply because they make an unwise one. The first step is understanding what “sufficient mental capacity” means in the context of making a will. In addition to the above we should always look at the following: 1) Discuss any earlier wills the client as made (and the reasons for changing it); and 2) Take the instructions in the absence of anyone who may stand to benefit or who may have influence over the testator. 549 QB, The second limb test extent of the property of which they dispose. The law does not call for a perfectly balanced mind. … The above lays out the conditions which dictate the rules in relation to capacity of a testator. Contesting a will on the grounds of mental capacity, Posted The test for capacity to execute a valid will is based in case law. Mental capacity, particularly in the earlier stages of a condition such as dementia, can fluctuate from day-to-day and the extent of a person’s understanding may not always be clear. The concepts which also have to be brought into consideration are the testator must be able to give some careful thought to the idea of who should receive what out of the testator’s estate. This is unsurprising, given that testamentary capacity relates to the mental capacity of the deceased at the time of writing their last will and testament. Additionally, matters have been further complicated by the introduction of the Mental Capacity Act 2005 (the "MCA") which sets out a new statutory "issue-specific" capacity test in many areas. Mental capacity requirements to make a will With debilitating conditions such as dementia and Alzheimer’s on the increase, the question of whether or not a person has mental capacity to make a will frequently arises. For example, if an executor named in such a will is insistent that the will is valid, it will be for the executor to prove that the testator had the necessary testamentary capacity. In Charles and Frazer xxxiv where it was discovered that an elderly testator, on examination by a consultant psychiatrist, had forgotten her relatives, scored very badly in this test. This means if the will is challenged there will be something to produce for the court to establish why you the will writer, believed the testator had the mental capacity to make a will. The Michigan statute that establishes the mental capacity requirement for a will is in Section 700.2501 of the Estates and Protected Individuals Code (EPIC). 623 x Key (Deceased), Re sub norm. Therefore existing case law is relevant. In this case the testator was aged 82 and in poor health and had suffered several strokes. The facts were looked at and the drafter’s notes considered as to how capacity had been judged and whether an up to date medical opinion had been ascertained in relation to the testator’s capacity. 1489; 13 I.T.E.L.R. The first principle is the testator needs to understand the nature of the act and its effects. Both an EPA and LPA must be registered. Again, the Court of Appeal considered the Will of a deceased father who had inexplicably left everything to his employees to the exclusion of his two daughters. If a Will is rational on its face, and correctly executed, it will be presumed that the testator had capacity … Traditionally two presumptions have applied: a) There is a presumption that the testator had testamentary capacity – the will is therefore submitted for probate unless anyone who is challenging the will can produce sufficient evidence to rebut this presumption. In the common law tradition, testamentary capacity is the legal term of art used to describe a person's legal and mental ability to make or alter a valid will. at the time a person makes these decisions the testator is deemed to have the capacity to do so. Failure to do so could result at the will being challenged later. 5 Q.B. In the above case Briggs J x accepted, ‘symptomatic effects of bereavement are capable of being almost identical to that associated with severe depression and can, therefore, mean that someone suffers a temporary loss of capacity’ Briggs J, also recognised the testator in this case could more than likely satisfy at least one of the tests in Banks and Goodfellow xi. The death of a minor is otherwise dealt with under the rules of intestacy if there are any assets to distribute. Try and obtain the testator’s medical records to establish whether the individual was suffering from any illnesses. i Wills Act 1837, Section 7 ii Wills Act 1837, Section 11 iii Wills Act 1837, Section 11 iv Wills, Administration and Taxation Law and Practice, John Barlow, Lesley King and Anthony King, 10th Edition 2011, ch 21, pp 453-454 v Banks v Goodfellow (1869-70) L.R. The court reasoned that if the testator had not been suffering from these delusions, he would have been of sound mind and he would not have made such a disposal of the property through his will. The court held in this case that the will drafter’s notes had not shown the client’s capacity to make a will was not clear as to whether this was a lucid moment. the testator may loose their reasoning/capacity as to how they distribute their estate in their will. MW Legal Services 26 Bryn Road Weymouth Dorset DT4 0NP. You may wish to enter a caveat with the Probate Registry to prevent a Grant of Probate being taken out and the assets of the estate distributed. There are slightly different tests for mental capacity depending on the type of decision being made. Deciding whether this is the case is not always straightforward. In terms of capacity, if there is any doubt in the mind of the will writer then proceed to obtain medical evidence to provide evidence of the testator’s mental capacity. Where this specific heading is raised, it is often in support of other matters concerning a testator’s capacity. If a testator did not consider leaving part of their estate to a close family member or did not consider a claim against the estate, this may be an indication that the person lacked the necessary mental capacity to understand their actions and it may be possible to contest a will. Also the medical reports from the time showed that the testator’s mental capacity had deteriorated rapidly and therefore it was found that the testator did not to have testamentary capacity and the estate was dealt with under the rules of intestacy. A Statutory Will is every bit as effective as if the person had full mental capacity and made the Will themselves. In this instant the court applied the rule in Banks and Goodfellow xxxviii and they were satisfied however the fourth test was not satisfied. The MCA 2005 xiii in section 1 provides the following should be considered when examining mental capacity xiv. 1059; (2007-08) 10 I.T.E.L.R xxxviii Banks v Goodfellow (1869-70) L.R. A testator need only have the capacity to understand the extent of his property. To make a Will, a person must: Understand the nature of making a Will and its effects. Therefore the testator needs to satisfy the will writer that they hold “a sound and disposing mind and memory” v. The case of Banks and Goodfellow vi established the following points which we need to consider when examining capacity. Capacity to make a will. This point was also shown in Barrett v Kaspryyk xxix which also illustrates the point that a testator need not have unclouded mental faculties to make a will. Mental capacity can be established with the use of Mini Mental State Examinations and individuals who appear, on face value, to be perfectly capable of making a Will might score very badly in the Mini Mental State Examinations. 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