A - Testamentary Capacity

Alex (not his real name), now in his mid 20s sustained a severe head injury when he was in his early teens. As a result he has many cognitive and physical problems.  They include; learning difficulties, problems with mobility and speech, executive dysfunction, reduced concentration and memory and an inability to retain and process information.  Alex lacks insight in to his own behaviour and can be irrational and emotional and is sometimes disinhibited.

Alex received a multi million pound settlement as part of a personal injury claim to hep compensate him for his injuries.  Alex’s brain injury and resulting deficits has meant that he doesn’t have the necessary capacity to manage his compensation. The Court of Protection have therefore appointed a  property and affairs deputy to help Alex with decisions about financial matters and to make decisions about them on his behalf when necessary.

Due to the input from his Deputy Alex is able to live in his own home and is supported at various times throughout the week by support workers who are directly employed by his Deputy.  Alex is also supported by a specialist case manager and a psychologist who are also employed by his deputy. All of this support has enabled Alex to integrate well into the local community and he lives a relatively independent life.

After his personal injury claim had settled Alex expressed a desire to make a Will. He was aware that he had received a large settlement and that there were a number of people that he wanted to benefit from his estate if there were still assets to pass on at the time of his death.

The first step in this process was to assess whether Alex had capacity to give instructions for a will – testamentary capacity. Capacity is time and decision specific and the assumption of capacity is not rebutted simply because Alex has a professional deputy to manage his property and financial affairs. Testamentary capacity is very different to the test of capacity to manage your financial affairs and a specialist capacity assessment was needed.

In order for someone to have testamentary capacity they must satisfy the test laid down in a case that came before the Court many years ago - it is known as Banks v Goodfellow (1870).  The court said that in order to make a Will a person must understand the following:

  • The nature and effect of making a will
  • The extent of their estate ( what they own)
  • The claims of those who might expect to benefit from their Will or be excluded from it.

The assessment of Alex’s capacity took place during 3 meetings with his psychologist. The initial meeting showed that Alex was able to understand what was needed of him but there was confusion regarding the form he wanted his Will to take and as a result his instructions appeared to be inconsistent. Rather than take the view that Alex lacked capacity to make a Will the psychologist asked further questions and established that Alex’s confusion arose from a lack of information and that he needed to be better informed as to his options.

The second meeting with Alex and his psychologist took place a week later and included a solicitor with a specialist qualification in Will drafting and experience of working with clients with a brain injury. Alex was asked questions designed to establish what he could remember from the previous meeting and whether his instructions were consistent. The solicitor also provided Alex with the options available for him to meet his overall wishes based on his earlier thoughts and instructions. The solicitor also suggested other things for Alex to think about including the tax implications of certain gifts.

In the third meeting, some two weeks later, the psychologist and solicitor were again present.  Alex was again assessed on his recollection of the previous meetings and his consistency of instructions and understanding. The periods in between the meetings were relevant to assessing Alex’s capacity to retain information and be consistent in his approach all of which helped to demonstrate his capacity to make a Will.

Alex’s instructions were consistent and the professionals were satisfied that he had testamentary capacity. A Will was prepared and signed by Alex and his signature was witnessed by the psychologist and the solicitor.

Making a Will for someone who may lack the capacity to manage their property and affairs should be a carefully considered process in order to ensure that the Will will stand up to scrutiny after the person’s death.   It is important to consider whether there are any external factors which may influence capacity  - in this case the external factor was that Alex had never discussed his wishes and options with a solicitor and whilst he knew what he wanted overall he was unsure about how to achieve this.

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