The word ‘capacity’ is an essential part of ‘legalise’. It is also an essential part of a valid will which can potentially give rise to a will dispute. Solicitors seem to bandy the concept around, particularly in the context of succession law, but have little regard as to whether the meaning is fully understood by their clients. As with most concepts in law, frustratingly, there is no single black and white definition of ‘capacity’. Instead, it is contextually dependent, varying in meaning depending on the specific area of law, although there are some commonalities.
In practice, ‘capacity’ is synonymous with ‘ability’ and, depending on the context in which it is used, can refer to one’s mental and/or physical ability to do something. In the context of estate planning, the question of whether someone ‘has capacity’ generally refers to their cognitive ability to give instructions. If someone does not have capacity at the time of executing their will it can potentially be challenged.
Capacity and Estate planning
Assessing capacity in estate planning can be problematic. It is largely based on old law and generally does not fully appreciate or incorporate modern psychological understanding of capacity. Take the modern approach to assessing one’s capacity to give Will instructions for example. The test that is still followed to this day was laid down in 1870, in the English case of Banks v Goodfellow.
The test is as follows:
That the testator (the person making the Will):
- Understands the nature of making a Will and its effect.
(Does the testator know what a Will is and what it does?)
- Understands the scope of their assets
(Does the testator know what they own and understand their level of wealth?)
- Knows who has a claim on their estate.
(Is the testator able to recognise anyone who they might have a social or moral obligation to provide for? In other words, are they able to recall their immediate family members or dependants?)
- Is not impacted by a ‘disorder of the mind or insane delusions’
(Are they suffering from any mental illness that would impact their decision making)
4 Steps a solicitor should take when capacity is in question
In estate planning, it is important to receive legal advice from a solicitor with experience in assessing capacity. The solicitor should:
- Conduct a detailed capacity interview when taking instructions and again before signing the documents.
- Keep detailed records of the capacity interviews. Such records should be stored with the testator’s file.
- If needed, contact the testator’s GP or psychologist or geriatrician and request a psychological assessment, as additional evidence of capacity.
- Keep the advice and documentation as simple as possible.
Failure of the solicitor to follow these steps, or to keep adequate records, may result in Wills or other estate planning documents being successfully challenged and overturned. This can lead to an intestacy or a penultimate will being in force.
Common misconceptions around capacity
- Capacity is only relates to your mental ability.
Mental capacity is generally the biggest issue that solicitors have to deal with, but it is not the only one. If someone is physically impeded from communicating instructions, then a solicitor will not be able to verify capacity.
- Someone has been diagnosed with dementia or has an intellectual disability, so they do not have capacity.
Although intellectual disabilities and degenerative cognitive diseases such as dementia are arguably ‘diseases of the mind’ they do not automatically mean that the sufferer does not have capacity.
- Someone who does not have capacity cannot have a Will.
Thankfully, there are avenues in place allowing people who lack capacity to make a Will. The process places an emphasis on the incorporating the wishes of the testator as much as possible. Unfortunately, it involves an application to the Supreme Court, so it comes with a hefty price tag.
- Someone lacks capacity to give certain instructions, they lack capacity to give any instructions.
Like most things these days, capacity is a spectrum. One may lack the capacity to give particularly complex instructions or to execute complex legal documents, but they may be able to understand and execute simple documents.
- Capacity degrades slowly.
Tragically, people often adopt an ‘it’ll be right, I can get to it later’ approach to estate planning when they or a loved one has been diagnosed with a terminal or degenerative cognitive illness and often leave it too late. It is important to get your affairs in order as soon as possible after such diagnoses.
If you have any concerns about yours or someone else’s capacity, particularly concerning estate planning, you should seek expert legal advice as soon as possible from one of our experienced solicitors at ROC legal.