Mental Capacity…..I`m sure I have capacity…..I think!

The assessment of mental capacity is a really tricky subject. There are no machines or gadgets than can give a print-out of the level of someone’s understanding. That much is possibly obvious,
but the really tricky legal question appears when you learn that the level of capacity is not the same across many different legal activities.

Starting at the lowest, entry level, of mental capacity we find that a marriage can validly be entered into by persons with quite limited mental capacity, possibly even suffering from Alzheimers disease, and needing a full-time carer. There have been quite a number of cases dealing with exactly that problem, when an elderly person develops a natural and deep affection for the carer, and they decide to marry. That in itself, that is not a problem. The difficulty only appears when you discover that the marriage automatically revokes any Will that might exist. And when there is no Will you have to look at the intestacy rules for distribution and entitlement, which, in very many cases, have proven to be far more generous to the bereaved spouse than the Will would have been. Testators naturally want to favour their own children before those of someone else.

If that isn’t complicated enough it gets worse when you learn that, after getting married, the elderly person tried to make a Will but was a little confused about the extent of his/her estate so lacked the necessary capacity. The bereaved spouse would be in a strong position to bring a claim to defeat a new Will. That’s a truly circular problem, because it was the same Alzheimers that
demanded the close attention of the carer in the first place.

Capacity to make a Will has been governed by long-standing principles set out in Victorian times in the case: Banks v Goodfellow (1870). These principles say that the testator must

• understand the nature of the will and its effect;
• have some idea of the extent of the property of which they are disposing under the will; and
• be aware of the persons for whom the testator would usually be expected to provide (even if he chooses not to) and be free from any delusion of the mind that would cause him reason not to benefit those people.

In that case John Banks was suffering from delusions and had lived for many years in an asylum, but his Will was still declared valid. Clearly such a person can make a valid Will, but there will be many would-be testators who fall at one of those hurdles.

The Mental Capacity Act 2005 went some way towards clearing up any confusion, but its operation does not apply to making Wills. They are in a category of their own.

For further advice about mental capacity and Wills contact John Pulham at:-
Messrs Pulham & Co
Egmere House,
Market Place,
IP17 1AG Telephone (01728) 602084 or e-mail