Testamentary Capacity Assessments
If a person’s mental capacity is in question, then a Testamentary Capacity assessment can help to ensure that the person creating or changing their Will is doing so with understanding and without duress.
In order to have Testamentary Capacity, a person will need to understand the extent of their estate and how they wish for it to be divided.
The assessment will also provide an opportunity for the client to confirm their wishes in a safe environment without any outside influence.
The completed Testamentary Capacity report will sit alongside the client’s Will to support any potential challenges that may arise.
What is the legal test used for Testamentary Capacity?
Testamentary Capacity is measured against a piece of case law called Banks v Goodfellow (1870). This sets out four limbs that a person must meet when making a Will:
- Appreciate the nature and consequences of making a Will
- Understand the extent of their estate
- Consider any moral claims to their estate
- Must not be affected by delusions or any disorder of mind affecting the distribution of their estate.
Where a person is found to lack capacity to make a Will, then an application can be made to the Court of Protection for a Statutory Will, this would then be measured by the criteria for mental capacity set out in the Mental Capacity Act (2005).
In order to complete a thorough assessment, we will gather relevant background information such as an existing or draft Will, whether the client experiences any cognitive impairment, the client’s family tree and the size of their estate. The Assessor then uses this information to develop questions to ensure that all decisions being discussed are covered in sufficient depth.
The assessment can take place either by video link or face to face depending on your location. We will be guided by you as to the best time to assess and whether you need a supporting person in the assessment. We will also take into consideration any communication needs and adapt the assessment accordingly. The assessment will take the format of a conversation rather than it being a formal test.
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