Covid-19 update: lack of testamentary capacity

Posted: 06/05/2020

A testator must be “of sound mind” when making a will. The legal test for testamentary capacity is set out in the 1870 case of Banks v Goodfellow. To have the necessary capacity, a testator must:

• understand that they are making a will and the effect of that will;
• know and understand the value of their estate;
• understand the consequences of including and excluding certain people in their will who they ought reasonably to include;
• not be suffering from any “disorder of the mind” which may influence their views.

There is, in addition, the “golden rule” set down by Lord Templeman in the case of Kenwood v Adams, which provides that where a testator is elderly or vulnerable it is advisable for the will either to be witnessed by a medical practitioner or for an assessment of capacity to be obtained for the testator before the will is executed.

We have seen a sharp increase in will enquiries since the coronavirus outbreak. These unprecedented events have clearly focused the minds of many on their legal affairs and how to protect their loved ones. Some of those wanting to make wills may be elderly, vulnerable, in care homes or perhaps even suffering from Covid-19 themselves, whether at home with minor symptoms or in hospital with more serious symptoms.

During the current crisis and these times of lockdown, self-isolation and social distancing, there are clear practical problems and challenges in ensuring that the “golden rule” is complied with.

It may be difficult to obtain a capacity assessment from a medical practitioner given the enormous pressure on the NHS. In cases where testators cannot be seen by a medical practitioner for the purposes of a capacity assessment and the validity of the will is challenged, the courts have previously accepted the assessment of an experienced solicitor, albeit that assessment must be robust and made after careful questioning of the testator. This may therefore be an option in some circumstances.

It is always advisable to have a valid will in place and to take legal advice during its preparation. It provides peace of mind that provision for family members has been made and ensures that assets are passed to those an individual wishes to benefit. If an individual dies without a will (intestate), statutory rules dictate the distribution of an estate and family members may fail to inherit assets. We would be happy to advise on the preparation of a will and any particular concerns which may exist due to Covid-19.

For further assistance on this and on how capacity can be assessed, please see Covid-19 and making a will: your questions answered.

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