Testamentary capacity

Having testamentary capacity – or the mental capacity to make a will – is crucial, just as it is for a large number of legal documents. The person creating the will must have the mental capacity to do so. Generally, mental capacity is the ability to make decisions for yourself, but it also requires you to be able to understand the legal significance of your decisions.

Due to the importance of mental capacity, the law sets out a test to help the process. To be able to make a standard will, you must understand:

  • the significance and effect of creating a will;
  • the extent of your property; and
  • the claims of anyone who might expect to benefit from the will – e.g. anyone you are maintaining or supporting at the time.

Finally, you must not be suffering from any mental disorder that would affect your decision making.

Sometimes it is recommended that you obtain specialist advice and arrange for a medical practitioner to approve your will by completing a testamentary capacity report before you execute it. The purpose of this is to confirm your understanding of the will and reduce the possiblity of it being challenged in the future. Examples include:

  • You have been diagnosed with an illness recognised as being capable of affecting testamentary capacity (e.g. cancer, dementia, epilepsy, Parkinson's disease etc).
  • You have had drug- or alcohol-related problems.
  • You have had a recent traumatic event (physical or emotional).
  • You have concerns, or concerns have been expressed by someone else, as to your mental capacity (e.g. episodes of drowsiness, confusion, forgetfulness or a marked change in personality).

It is also good practice that older people consider having their will approved or witnessed by a medial practitioner, regardless of whether the issues above affect them.

If you are suffering from a condition that has a different effect over time (such as Alzheimer’s), all that matters is whether you have the necessary understanding on the day of making the will.

If you are in any doubt concerning whether you or someone who is making a will has testamentary capacity you should seek advice.

If you are assisting someone else making a will, and there is any doubt at all about their capacity, it is possible to obtain a testamentary capacity report from a medical professional to have evidence as to the testator’s mental capacity.

Report on testamentary capacity

If you are at all worried about a potential challenge to your will based on capacity, you can obtain a testamentary capacity report. This is an assessment with a psychiatrist, specifically to provide a clear report about capacity that can be relied upon if your will is challenged later. This may be important if your plan for your estate is particularly controversial – e.g. leaving all of your possessions to only one of your children – or if there are well-known issues, including anything from a poor memory to a diagnosed condition.

If you would like to request a report on testamentary capacity, it is normally sufficient to write a letter to your GP or another medical practitioner. This letter should explain your reason for requesting the report, and explain that you need an assessment in relation to a will.