Mental Capacity concerns being in position of sound mind and being able to make your own decisions. It is ultimately governed by the Mental Capacity Act 2005.
There are a number of things that can impair your mental capacity and cause you to lose mental capacity. Examples could be:
- A stroke
- A brain injury
- A mental health condition
In order to create a valid Will or lasting power of attorney through a Will Writer, Solicitor, or Estate Planner you must have mental capacity. Without Capacity an application would have to be made to the courts for a Statutory Will.
The Mental Capacity Act doesn’t make direct reference to the creation of a Will, but the courts do place weight on this Act when coming to a decision as well as using the precedents set in case law.
A key consideration for a professional drafting your Will is whether you have sufficient capacity to meet the principles laid out in the case of Banks v Goodfellow. This case forms the foundations for mental capacity assessment when a Will Writer meets a client.
In short the testator must be able to demonstrate that they:
- understand the nature of his act (of making a will) and its effects;
- understand the extent of the property in his estate; and
- be able to comprehend and appreciate the claims to which he ought to give effect; and
- that no disorder of his mind “shall poison his affections, pervert his sense of right, or his will in disposing of his property”.
If a Will Writer, having used the principles in Banks v Goodfellow, is ever in doubt about the capacity of a client, they will normally consult a professional such as the client’s doctor or a mental capacity assessor. This is also known as the ‘golden rule’.