Effects of mental illnesses on testamentary capacity

In order to make many important decisions such as making a Will or a Lasting Power of Attorney (LPA) it is vital that the person making the decision has testamentary capacity. But what exactly do we mean by the term “testamentary capacity?”

It is a legal term used to describe a person’s mental capability to make their own decisions, and it includes factors such as, do you understand all the information that you need in order to make this decision? Do you understand the nature and scope of all your property? Can you appreciate in full all the matters that ought to be considered?

But what if you have a mental illness? Does this mean that you do not have testamentary capacity? In short, the answer is no. This is a complex issue and each case should be assessed on its own merit.

In 2014 a case came to court regarding a lady who had received a formal diagnosis of dementia which had progressed and was assessed at being at a mild to moderate stage. She had made her Will with assistance of a friend who had worked in a solicitors office and a CD of will precedents. No solicitor was involved in the preparation of the Will.

The home made Will had missed out key clauses that were present in the previous Will, these being a gift of  shares in the family business and the gift of a flat to one of her Sons. As a result of these omissions, the Son received less than his siblings.

Upon her passing, her Son contested the Will on the basis that she did not have the required level of capacity due to her dementia. The Court have a test for capacity that came from an earlier case, and the Courts have to establish whether the testator understood the nature of the Will and its effect, whether she knew what property she had, and what she was giving away in the Will. Was she aware that her Son would expect to be provided for? Even if she decided not to provide for him. And by no means least, was she free from delusion of the mind that would cause her reason not to benefit her Son?

On application of these points the Court found that the testator was not lacking capacity and the Will was valid. The Son attempted to appeal however the appeal was dismissed.

The following year came another case with similar facts, the testator had dementia and made a Will leaving everything to one of her two Sons. The Son who was not to inherit contested the Will on the grounds that the testator developed dementia prior to the Will being made, and that at the time the Will was signed, she was suffering from false beliefs and delusions in respect of his behaviour.

The Court again applied the test for capacity and reached the conclusion that the Will was valid. The testator’s belief’s in respect of her dis-inherited Son were held to be justified based on what had actually happened. The testator had the right to leave her estate to whoever she wished.

Capacity isn’t just a problem for older people, younger people can be vulnerable too. Particularly if they are suffering from a mental illness. It may be that a person is capable of making some decisions, such as what time they get up, and whether they have a bath or shower, but they may struggle with more complex financial decisions, or deciding who to appoint as their attorney, or who should benefit from their Will. Capacity is a fluid concept and there is no one size fits all.

Solicitors that deal with Wills and LPA’s on a regular basis are trained to assess capacity and do have the authority to sign off on whether or not a person is capable of making such important decisions. Whilst an illness such as dementia, or a learning difficulty should not automatically mean that capacity has been affected it is always best to involve a doctor who can confirm on a medical level how a person’s condition affects their ability to understand information and make important decisions.

The involvement of a medical professional will then reduce the chances of the Will not being valid, or in the case of an LPA, being queried by the office of the public guardian.

It is vital that everyone has a Will in place, as well as an LPA.  For advice from our Will experts please contact us on 01924 379078 and we will be happy to advise you.