Drafting a Will is a fundamental aspect of financial planning, yet it often gets overlooked due to its perceived complexity. However, having a valid Will in place is critical as it ensures that on your death, your assets and possessions will be distributed according to your wishes, eliminating potential disputes. Additionally, a Will allows you to appoint guardians for your children and make provisions for any dependents or charitable causes you may support.
It is important to regularly review and update your Will as life circumstances change. This could include marriage, divorce, birth of children or grandchildren, acquisition of new assets, or changes in personal relationships. Failing to update a Will may result in assets not being distributed as intended. Therefore, it is crucial to revisit your Will periodically and make necessary changes to reflect your current wishes.
In order to make a valid Will, you must have mental capacity to do so (known as “testamentary capacity”). If your testamentary capacity at the time of making your Will is later questioned, your Will could be challenged in Court. This is where a testamentary capacity assessment can be crucial since it will determine and then act as a record as to your capacity to make a Will at the time when the Will was made.
Often, a testamentary capacity assessment is required where a person has an existing diagnosis of cognitive impairment, such as dementia or brain injury, or where communication is impaired such as a stroke. It could also be that a person does not have a formal diagnosis of cognitive impairment but that symptoms of cognitive impairment such as memory loss, difficulties in understanding and processing information or difficulties in executive functioning may be present, which might lead others to question their ability to make decisions. In these cases, a testamentary capacity assessment would also be useful.
Even if there is no formal diagnosis or presenting symptoms of cognitive impairment, a solicitor may still advise their client to have a testamentary capacity assessment. In such cases, a testamentary capacity assessment is completed under the “Golden Rule”. This came about from the case of Kenward v Adams (1975) where the Judge noted that where a testator is elderly or has had a period of ill health, it was good practice for the Will to be witnessed or approved by a medical practitioner who has assessed the mental capacity of the testator and recorded their findings. In the legal profession, significant weight is given to the Golden Rule and it is considered good practice for a solicitor to advise an elderly client to undertake a testamentary capacity assessment.
The testamentary capacity assessment will ask questions to ascertain the person’s understanding of key aspects of making a Will, outlined in the caselaw of Banks v Goodfellow (1870). This is the specific caselaw by which a person’s capacity to make a Will is measured.
There are four “limbs” of Banks v Goodfellow (1870). These are that a person must understand the nature of making a Will, understand the extent of their assets, understand those who may have a claim on their estate and that the distribution of their estate must not be affected by any delusions of the mind or mental disorder.
It is really important to note that if a person does have a formal diagnosis or symptoms of cognitive impairment, this does not automatically mean that they are not able to make decisions themselves in respect of making a Will. Many people who do have formal diagnoses or symptoms of cognitive impairment will have the mental capacity to make a Will.
At TSF Assessments Ltd, our skilled assessors will assess the individual and evidence whether they meet the criteria of Banks v Goodfellow and are able to make a Will. The assessor will ensure that the individual is supported to make the decision for themselves wherever possible- taking time to explain information where necessary and by using support tools to aid the person’s understanding, recall and ability to use the necessary information to make decisions about their Will.
In the event that the individual is assessed as not having testamentary capacity, then they can still make a Will; this would be done through an application to the Court of Protection who would look at their circumstances, previous Wills and any known wishes. A Statutory Will could be made by the Court of Protection on their behalf.
Table of Contents
- Why is it important to have a Will in place?
- Protecting your loved ones and family
- What is a Testator?
- What is a Beneficiary?
- What is an Executor and what are their duties?
- Why might I need a Mental Capacity Assessment?
- What if I am found to lack capacity to make a Will?
Why is it important to have a Will in place?
If you die without writing a Will, your estate will be distributed according to the Intestacy Rules. This can take a lot of time and is not always straight forward. It also means that your estate will be distributed in a prescribed way amongst your nearest relatives, rather than you choosing who you want to leave your assets to.
Protecting your loved ones and family
Many people feel strongly that leaving a loved one a proportion of their estate in a Will is a good way of providing financial security for them. Some people also choose to leave a proportion of their estate to charity. If you do not make a Will, you will not have any say as to who benefits from your estate or how much each person will receive. Your estate would be distributed according to UK intestacy rules.
What is a Testator?
A person who makes a Will is called a Testator. For a Will to be legal binding, the Will must be signed, and witnessed by two people who must be present. A witness must be over the age of 18 and cannot be a beneficiary of the Will. Once signed and dated, the Will becomes legally valid.
What is a Beneficiary?
A Beneficiary is a person that benefits from the Testator’s estate. This could include assets such as property, savings, insurance policies and personal chattels.
Naming beneficiaries in your Will can give you peace of mind that your wishes (in respect of the division of your estate) will be carried out.
What is an Executor and what are their duties?
The Executor of a Will is appointed by the Testator to administrate their Last Will and Testament when they die. It is the Executor’s job to carry out the instructions set out in the Will and to manage all of the deceased person’s affairs.
The Executor will value the person’s estate after their death and be responsible for distributing the estate to the named beneficiaries. They will also be responsible for ensuring all taxes are paid on the estate. An executor cannot act if they have a criminal record or have been made bankrupt.
Why might I need a Mental Capacity Assessment?
Sometimes, after a person dies, their Will could be challenged, for example, by a close family member who is not included in the Will. The family member may think that they have a claim on the person’s estate. One of the grounds for a challenge to a Will could be the assertion that when the person made the Will, they did not have mental capacity to do so, thus rendering the Will invalid.
If you are intentionally excluding an individual from your Will and you are worried about your Will being challenged after you die, you may choose to have a mental capacity assessment. This would be completed at the time of making your Will. If you are found to have capacity to make a Will, a report detailing the assessment can sit alongside your Will to evidence that, at the time of making your Will, you had mental capacity to do so.
This can be particularly useful for people who may have a diagnosis of cognitive impairment such as dementia, brain injury, cognitive difficulties after a stroke, learning disability or mental health diagnoses, meaning that a challenge may be more likely. Even if you do not have a cognitive impairment but you think that a challenge to your Will may be likely, perhaps due to difficult family circumstances, a mental capacity assessment can be helpful to decrease the likelihood of a challenge being brought on the grounds of mental incapacity.
What if I am found to lack capacity to make a Will?
It is possible that the outcome of a mental capacity assessment is that a person does not have capacity to make a Will. Prior to arriving at this conclusion, all possible ways of supporting the person to make the decision for themselves should have been tried. If a person lacks capacity to make a Will, it is still possible for a Will to be put in place and for their wishes to be taken into account. An application can be made to the Court of Protection for a Statutory Will where a Judge would consider all those who may have a claim to the person’s estate and also any previous Wills that may have been made, and the person’s current expressed wishes in relation to the distribution of their estate.
TSF Assessments are frequently asked to assess a person’s testamentary capacity. The criteria for testamentary capacity is taken from Banks v Goodfellow (1870).
We understand that it is imperative to have an efficient service when assessing testamentary capacity. Our Testamentary Capacity Video Link assessments provide professional, quality reports that are produced in a timely fashion. Read more about our Testamentary Capacity service here.
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