Testamentary Capacity: An Overview

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Testamentary capacity refers to the legal and mental ability of an individual to make or alter a valid will (last will and testament). A will is a legal document through which a person, called the testator, expresses their wishes regarding the distribution of their assets after death. Testamentary capacity is a fundamental concept in the law of wills because it serves to ensure that the testator fully understands the consequences of their decisions and that the will represents their actual desires for the distribution of their assets.

A will can be contested if someone believes the testator lacked the necessary mental capacity at the time it was made. In such cases, establishing testamentary capacity becomes crucial for the will to be legally valid. Let’s explore the criteria for testamentary capacity, the legal and medical factors involved, and its importance in safeguarding the integrity of a will.

The Legal Definition of Testamentary Capacity

In most legal systems, testamentary capacity is determined by common law principles that date back to the 19th century case of Banks v. Goodfellow (1870), a landmark decision in English law. This case set the foundational test for determining whether someone possesses the mental capacity to make a will. The decision established four key criteria that must be met for a testator to be considered capable:

1          Understanding the nature of making a will and its effects (knowing that they are making a will):

   The testator must fully understand that they are making a will and that it is a legal document that will take effect upon their death. They must also grasp the fact that the will dictates how their estate will be distributed to beneficiaries. This level of awareness is essential because it ensures the testator appreciates the importance and consequences of their actions.

2.         Understanding the extent of the property being disposed of (the extent of their “bounty” as per the language of the landmark case ruling):

   The testator must have an adequate understanding of the extent of their estate. This includes having a general idea of their assets, such as real estate, savings, investments, and personal possessions. It is not necessary (or likely even possible, given the volatility of most financial asset classes) that the testator know the exact value of each asset, but they must have a reasonable awareness of what they own and how it will be distributed.

3.         Comprehending and appreciating the claims to which they ought to give effect (who one’s natural heirs are):

   The testator must recognize and take into account the individuals who might have a claim to their estate. This typically includes close family members, such as a spouse, children, and dependents. The testator must be able to make rational decisions about these claims, even if they choose to exclude certain individuals or allocate their assets in a non-traditional manner.

4.         The decision -making process is not affected by any disorder of the mind or delusions (the decision-making process in completing a will must be free from that influence):

   The testator must not suffer from a mental disorder or delusion that would prevent them from making rational decisions regarding the distribution of their estate. For instance, if a testator harbors a delusional belief about a family member or beneficiary, and that belief influences the contents of their will, it may raise concerns about their testamentary capacity. However, the testator may suffer from a mental disorder or delusion that does not prevent them from making rational decisions regarding the distribution of their estate.

[Prior to the Banks V. Goodfellow ruling, the British Statute of Wills was interpreted to invalidate wills executed by individuals with any mental disorder.]

These four criteria establish the general framework used by courts to assess testamentary capacity. A failure to meet any one of these requirements could render a will invalid, particularly if it is proven that the testator was incapable of making rational decisions at the time the will was executed.

Medical and Psychiatric Factors

Testamentary capacity is not just a legal issue; it often involves medical and psychiatric considerations, particularly when the testator's mental health is in question. As people age, they may experience cognitive decline, dementia, or other mental health conditions that can impair their ability to make sound decisions. Conditions such as Alzheimer's disease, schizophrenia, depression, or traumatic brain injuries can significantly affect a person’s cognitive functions, making testamentary capacity harder to assess.

In some cases, medical professionals such as psychiatrists may be called upon to evaluate a person's mental state and provide an expert opinion on their capacity to make a will. These experts assess various cognitive functions, including memory, reasoning, understanding, and judgment. Their testimony can play a pivotal role in legal disputes over a will's validity.

It is important to note that the mere occurrence of mental health conditions does not automatically invalidate testamentary capacity. A person may be capable of making a valid will even if they are suffering from a mental illness, as long as their condition does not interfere with their ability to meet the Banks v. Goodfellow criteria. Courts may often look for evidence of “lucid intervals”—periods during which an individual with mental illness is clear-headed and fully aware of the decisions they are making. If a will is executed during such an interval, it may still be valid, even if the testator's overall mental state is compromised.

Challenging Testamentary Capacity

A will may be challenged on the grounds of testamentary incapacity, typically by a family member or someone who stands to benefit from a different distribution of the estate. In such cases, the burden of proof lies with the party who is challenging the will, who must demonstrate that the testator lacked the necessary mental capacity at the time the will was made.

The process of challenging a will based on a lack of testamentary capacity often involves reviewing medical records, obtaining expert psychiatric/medical testimony, and analyzing the circumstances surrounding the execution of the will. For example, if a person made a will while undergoing treatment for a severe mental illness or cognitive impairment, those records could be used as evidence to argue that they lacked the capacity to understand the nature of their actions.

Legal Safeguards & Best Practices

In the event of a legal challenge from disappointed potential beneficiaries, it is essential to maintain best practice to ensure the provision of high quality evidence. An increasingly common standard regardless of how straightforward the will-making process may appear for any given testator, is that the making of a will is witnessed  (or at a minimum, reviewed) by a psychiatrist with the specific medico-legal expertise who finds the capacity and understanding of the testator to be acceptable, has reviewed the relevant records and documents, produces  a written description of the opinion and assessment process and ideally videotapes the assessment process with the testator.

Limitations to this ideal approach are limited availability of skilled psychiatrists and the pitfall of having a physician involved who signs off on a testator’s capacity to make a will while not utilizing or being unaware of the correct application of the medico-legal questions at issue (e.g. incorrectly relying on bedside tests such as the mini-mental state examination to form an opinion re. testamentary capacity). A testamentary assessment should occur in the absence of potential beneficiaries or those who may exert influence. It is discouraged for a psychiatrist to witness a will without having properly assessed the  capacity of the testator.

It is important for the psychiatric evaluator to have familiarity with the standard of proof in civil legal matters being, “on  the balance of probabilities.”

A doctor's statement attesting to the testator's mental competence can serve as powerful contemporaneous evidence if the will is subsequently contested.

If in doubt about the testator’s capacity, a second opinion from an experienced psychiatrist will likely provide additional clarity about these challenging medico-legal situations.

In addition, using a qualified legal professional to draft the will can ensure that the testator's intentions are clearly articulated and that the necessary legal formalities are followed. A lawyer can also take steps to assess the testator's capacity through detailed conversations, ensuring that they understand the nature of the will and the distribution of their assets.

Furthermore, videotaping the execution of a will is another strategy that can help limit disputes regarding the validity of how the will was written. In the recording, the testator can explain their wishes and demonstrate their understanding of the will's contents, providing direct evidence of their mental state at the time.

Summary 

Testamentary capacity is an important legal concept that ensures individuals are of sound mind when making decisions about the distribution of their estate. The criteria established by Banks v. Goodfellow provide a 4-point framework for assessing whether a testator has the necessary mental capacity to make a valid will. While mental health conditions can complicate the issue, having psychiatric and medical evaluations and legal safeguards in place can help protect the integrity of a will.

Ultimately, the likelihood of an individual’s testamentary capacity ensures that their final wishes are respected and that their estate is distributed according to their true intentions.

For discussion of how Sky Psychiatry may assist with testamentary capacity, undue influence or other medico-legal/forensic psychiatric matters, we welcome your calls or messages.