Eastwood Mind and memory
Testamentary Capacity
What is Testamentary Capacity?
Testamentary Capacity is a legal term that refers to a person’s legal and mental ability to make or alter a will.
How is Testamentary Capacity Assessed?
When assessing Testamentary Capacity the framework for assessing capacity as outlined in the Mental Capacity Act 2005 is followed. There are also requirements that should be met as set out in Banks v Goodfellow. These are:
- The person understands what making a will means and what the effects of making a will are
- The person understands the extent of the property which will be covered by the will (the extent of the estate)
- The person understands and appreciates the people who “should be included in the will, even if they decide not to leave anything to them”
- The person does not have a mental illness that influences them to make bequests they would otherwise not make
Why is a doctor needed?
When solicitors are consulted to draw up or amend a will they will follow a golden rule. This means that they must take steps to make sure a person (the testator) has capacity to make a will if there is any question over their ability. This will often mean bringing in someone who has expertise in assessing capacity to assess the person to see if they do have the required mental ability to make or amend a will.
This is where I come in. I have over 20 years experience of assessing capacity for a variety of decisions in people who have altered brain function.