How do you distinguish a ‘Senior moment’ from a lack of mental capacity?

President Joe Biden has hit the headlines again in recent weeks for what appears to have been another senior moment, having called out to a recently deceased reporter at a press conference. The President’s ongoing confusion has been evident on several occasions, but how can you distinguish between simple confusion – let’s face it, it happens to us all at times – and an actual lack of mental capacity?

In the UK, if you are deemed to have lost your mental capacity you cannot make a Will (amongst other things). Traditionally, a person’s capacity has been determined by applying the common law test established in Banks v Goodfellow (1870):

John Banks was a wealthy landowner in the Lake District in the 19^th Century, who unfortunately suffered from epilepsy and delusions during his lifetime. He subsequently spent time in a lunatic asylum whilst believing he was being frequently visited by evil spirits and a friend who had already died. In 1863, having been released from the asylum some years prior, John Banks made a new Will. With no spouse, children of his own or surviving parents, the new Will left the entire estate to his only niece Margaret, and when John passed away in 1865, Margaret inherited everything. Unfortunately for Margaret, she passed away herself in 1867, leaving her estate – including everything she inherited from her uncle – to her half-brother, who was not a blood relative of John Banks. John’s own half-brother (no relation to Margaret) was unhappy with this turn of events and sought to have John’s most recent Will thrown out, citing his previous mental health issues, and claiming he had been insane at the time of instructing a solicitor.

As a result, John’s acting solicitor was hauled over the coals: his professional ethics and judgement were called into question, and his own familial and financial circumstances scrutinised to establish if he had acted unscrupulously, in any way benefitting from Margaret inheriting John’s estate. The solicitor argued that John had in fact been perfectly lucid and logical on the occasions the gentlemen met to discuss the contents of the Will; he had provided a good understanding of his assets and gave good reasoning for disposing of the same in the way he did. The judge held that this was sufficient evidence: whilst the remaining family may not have been happy with his choice, John Banks had been thinking clearly and the courts upheld the Will.

Whilst this all took place some 150 years ago, it is not uncommon to see such scenes in modern courtrooms, with almost 200 contested Will cases in 2020 alone. Ultimately, where capacity is the point of contention, the four-part test established in Banks is still applied:

• Did the testator understand what it means to make a Will and the effects of doing so?
• Were they aware of, and understand the extent of, their assets – this doesn’t mean they knew precise figures: did they understand the ‘what’, rather than the ‘how much’?
• Did they appreciate who should be a priority in the Will and who might make a claim if left out?
• Have they any obvious or diagnosed abnormality of the mind that might hinder their decision making?

This last point is for the acting solicitor to establish. We are reliant on the information the client provides, and if they have a diagnosed condition, they are not willing to disclose we can be left fumbling in the dark looking for clues. Where there is any doubt as to the client’s capacity, an independent assessment is always sought. Please don’t ever be alarmed if your solicitor asks for an independent assessment to be undertaken, we’re protecting you and your assets, and it certainly shouldn’t be something to worry about. Unless, that is, you are looking to leave gifts in your Will to already deceased friends (sorry Mr President).

If you need to update your Will, or would like any more information about how we establish capacity, our Wills and Probate solicitors at Chadwick Lawrence can offer guidance and even recommend independent assessors where necessary. Not only that, but if you are concerned that someone has been coerced into making a Will when they lacked capacity, we’re always on hand to point you in the right direction.