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Capacity To Make A Will

Capacity article intro picture

The question of mental capacity is crucial to the creation of any legally valid Will. Once capacity has been lost, it is no longer possible for the individual in question to create a valid Will.

It is essential that a person creating a Will understands the general nature and effect of the document they are signing. They must understand and approve the content of the document, be aware of the nature and extent of their assets and have in mind all those persons who might reasonably expect to benefit under the Will. [Banks v Goodfellow (1870) LR 5QB].

Whenever there is some doubt as to an individual’s mental capacity it will be necessary first to assess their ability to comprehend these matters. If doubt then remains, a medical opinion on the point must be obtained. If such opinion is favourable, a Will may be created. It is best that arrangements be made for the medical practitioner to be a witness to the Will, so that if any question as to capacity should arise later, evidence may be obtained from the medical practitioner as to the person’s capacity at the actual time that the Will was signed.

Case study

The first time that I met Tony, he told me that his brain did not work properly.

He was able to live independently, with help from one good friend who called each day to make sure that all was well and to help him deal with his post or any other task he could not cope with himself. He quite clearly did have mental health problems, but was able to converse reasonably well, if hesitantly, and to express his wishes clearly. My initial assessment was that he probably did have sufficient capacity to be able to create a Will.

Tony’s assets were not very extensive. He lived in a council owned flat and his personal possessions were few, but he had saved all his life and now had £30,000 in his bank account. He was single and his parents had died. He had two brothers, neither of whom had anything to do with him, and one was addicted to drugs. He was adamant that he did not want either of his brothers to inherit his money. Instead, he wanted this to go to the friend who cared for him.

The first step was to obtain an opinion from Tony’s GP as to his mental capacity and his ability to create a Will. A favourable opinion was obtained and a simple Will was prepared for Tony which set out his wishes. The Will was carefully explained to him and his understanding of it ensured. Next, an appointment was made with Tony’s GP which Tony and I attended together. We went through the Will again making certain that Tony understood and approved its content and that his GP was satisfied that this was the case. Tony then signed his Will which was witnessed by his GP and myself. The GP and I later made detailed notes of what had occurred so that our records would be available to be used in evidence should any challenge be made to Tony’s Will after he had died.

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Westbury Wills

57 Sylvan Way, Sea Mills, Bristol BS9 2LB United Kingdom
Phone: 0117 907 1002