Validity of wills and codicils - Effects of illness on capacity

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Overview

Examining how illness affects testamentary capacity is essential for legal professionals, especially those preparing for the SQE1 FLK2 exam. This topic involves evaluating an individual's mental state when creating or changing a will, the legal standards that apply, and the measures used to protect testamentary documents. Understanding these aspects ensures wills and codicils remain legally sound, even when a testator's capacity is affected by illness.

Legal Framework for Testamentary Capacity

The Banks v Goodfellow Test

The basis of testamentary capacity assessment lies in the test from Banks v Goodfellow (1870) LR 5 QB 549. This case outlines the required criteria for a testator to make a valid will:

  1. Understanding the nature of the act and its consequences.
  2. Comprehending the extent of their property.
  3. Recognizing the claims to which they should give effect.
  4. Ensuring no mental disorder affects the testator’s judgment.

These criteria continue to guide modern testamentary capacity evaluations.

Mental Capacity Act 2005: Modern Guidelines

The Mental Capacity Act 2005 (MCA 2005) sets the statutory principles for assessing capacity, including will-making:

  1. Capacity is presumed unless proven otherwise.
  2. Individuals must receive support to make decisions before being considered lacking in capacity.
  3. Unwise decisions alone do not signify lack of capacity.
  4. Decisions for someone lacking capacity must be in their best interests.
  5. The least restrictive option should be prioritized.

While Banks v Goodfellow remains the standard, MCA 2005 principles offer a modern, person-centered approach to capacity assessment.

Impact of Illness on Testamentary Capacity

Illness can significantly influence a person's cognitive abilities and testamentary capacity. Different conditions have varied effects:

Dementia and Cognitive Disorders

Dementia, such as Alzheimer's, poses challenges in assessing capacity due to its progressive nature. As seen in Re Beaney [1978] 1 WLR 770, capacity requirements depend on the will's complexity and the testator's estate.

Example: A person with early-stage Alzheimer's may manage a simple will but struggle with more complex arrangements.

Mental Health Issues

Conditions like depression or schizophrenia can affect testamentary capacity, introducing the concept of lucid intervals—periods where capacity is restored.

Lucid Intervals: Times when a person with a mental health condition can competently make a will. The Banks v Goodfellow case itself involved a testator experiencing delusional episodes.

Terminal Illness

Terminal illnesses can affect testamentary capacity indirectly through medication, pain, or emotional distress. Re Watson [1973] 1 WLR 1472 highlights how pain medication may alter a testator’s capacity.

Legal Safeguards and Professional Responsibilities

The Golden Rule

Outlined in Kenward v Adams [1975] CLY 3591, this rule advises solicitors on handling wills for elderly or ill testators:

  1. An independent medical assessment of capacity should be organized.
  2. The practitioner must confirm the testator’s capacity.
  3. The medical practitioner should witness the will’s signing.

Though not mandatory, following the Golden Rule helps protect wills from disputes.

Regular Capacity Assessments

Where capacity is uncertain, solicitors should obtain medical assessments. This aligns with Scammell v Farmer [2008] EWHC 1100 (Ch), showing the value of real-time capacity evidence.

Example: For a client with fluctuating capacity, a psychiatrist’s assessment on the day of signing can verify understanding, helping to safeguard the will.

Statutory Wills

If capacity is absent, a statutory will may be authorized by the Court of Protection per Section 18(1)(i) of the MCA 2005:

  1. Application to the Court of Protection.
  2. Determining best interests, considering past wishes and values.
  3. Consulting family and relevant parties.

In Re D (Statutory Will) [2010] EWHC 2159 (Ch), the court stressed that the best interests test is broader than just financial concerns.

Practical Considerations for Legal Practitioners

Documenting Capacity Assessments

Careful documentation is essential. Include:

  • Detailed meeting notes with the testator.
  • Observations of behavior and responses.
  • Medical reports or assessments.
  • Rationale for capacity conclusions.

Addressing Undue Influence

Illness increases vulnerability to undue influence. Practitioners must watch for signs of coercion, especially when beneficiaries are involved, as clarified in Edwards v Edwards [2007] WTLR 1387.

Balancing Confidentiality

Balancing confidentiality with gathering information about a testator’s capacity is important. Consent to consult medical professionals or family can aid comprehensive capacity assessment.

Conclusion

Illness and testamentary capacity pose significant challenges and are important for SQE1 FLK2 exam candidates. Key considerations include:

  1. The continuing relevance of the Banks v Goodfellow test, informed by the Mental Capacity Act 2005.
  2. The varying impacts of illnesses like dementia, mental health, and terminal conditions on capacity.
  3. Legal safeguards like the Golden Rule and contemporaneous assessments.
  4. The option of statutory wills for those lacking capacity.
  5. Practical steps for legal practitioners, including thorough documentation and addressing undue influence.

By understanding these principles and practices, legal candidates can confidently address the sensitive issue of will validity when illness affects capacity.