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Testamentary capacity

MPS medicolegal adviser Dr Sonya McCullough explains the often confusing issue of testamentary capacity

Scenario 1

Mrs B is a 75-year-old patient at Dr M’s practice. Mrs B has a history of Type 2 diabetes and hypertension and Dr M has known her for many years. Mrs B’s daughter has voiced some concern about her being rather forgetful lately. Until last year, Mrs B lived alone and managed well but is currently living with her daughter. Mrs B makes an appointment to see Dr M in relation to her testamentary capacity as she is in the process of making a will. What issues should Dr M consider covering with her?

The law in Ireland in relation to testamentary capacity is very similar to English law on the subject. Under the Succession Act (1965) “the person making the will must be of sound disposing mind”.

It is important to remember that testamentary capacity is not the same as ordinary capacity, as a person requires a high level of mental function to be in a position to make a will. Testamentary capacity is not easy to define and each patient should be reviewed individually by the GP, if so requested, and contemporaneous notes kept.

Under a leading English case1, a law which has been approved in the Irish courts, the judge set out the following principles in relation to testamentary capacity: 

  1. The testatrix must understand that she is executing a will.
  2. She must know the nature and the extent of her estate. She must be able to call to mind persons who might be expected to benefit from her estate and decide whether or not to benefit such a person.

In 1995 the British Medical Association and the Law Society published a report entitled Assessment of mental capacity/guidance for doctors and lawyers, which contains a useful checklist, although this is neither authoritative nor exhaustive. Mrs B should be able to understand the following:

  • That she will die.
  • That the will should come into operation on her death and not before.
  • That she can change or revoke the will at any time before her death, provided that she has the capacity to do so.
  • Who the executors are and why they should be appointed as executors.
  • Who gets what under the will.
  • Whether a beneficiary’s gift is outright or conditional.
  • That if she spends her money or gives away her property during her lifetime the beneficiaries might lose out.
  • That a beneficiary might die before her.
  • Whether she has already made a will, and if so, how and why the new will differs from the old one.
  • The extent of all the property owned solely by her.
  • The fact that certain types of jointly owned property might automatically pass to the other joint owner, regardless of anything that is said in the will.
  • Whether there are benefits payable on her death which might be unaffected by the terms of her will.
  • The extent of the property could change in her lifetime.

It is possible that Mrs B’s solicitor has some doubt as to her capacity to make a will and has therefore sought Dr M’s opinion. Dr M should make a specific appointment to assess her capacity to make a will – the principles and checklists would be of some assistance. Mrs B has been forgetful of late and is no longer living independently. It may be prudent for Dr M to check her capacity in general terms before moving to consider her testamentary capacity. If Dr M feels this is outside her area of competence, she could consider referring the patient to a psychogeriatrician in the first instance.

Scenario 2

Mr M was a patient at Dr A’s practice for many years. However, he died in 2013. Dr A only saw him on one or two occasions in 2008. Mr M’s son has made an application to take out a Grant of Probate and requires confirmation that he was of sound mind when he made a will in 2009. Dr A was aware from a review of the medical records that Mr M was diagnosed with Alzheimer’s disease in 2010.

Here, the testator cannot be assessed with regards to testamentary capacity. Under Irish law, there is a general presumption that a will is valid, but this presumption can be reversed where, for example, the deceased died in a mental institution or one of the causes of death on the death certificate is Alzheimer’s disease. In these circumstances, the probate office will usually seek an affidavit of testamentary capacity from the deceased’s doctor and it is possible Dr A may feel some pressure to provide such an affidavit stating that at the date of the will his deceased patient had testamentary capacity.

The affidavit of mental capacity by a doctor will state that a doctor attended the testator in his professional capacity for a certain period, preferably around the time the will was executed. It will confirm that the doctor is satisfied that the testator was of sound, disposing mind when he made his will and was fully capable of doing so. Great care should be exercised by Dr A in these circumstances.

It is important that he should not make assumptions regarding Mr M’s capacity and it may be more appropriate that any statement or affidavit should be couched in negative terms. For example, that he has no reason to think that the deceased did not have testamentary capacity.

In circumstances where the deceased cannot be assessed on the issue of testamentary capacity, the family’s legal representative may have to make an application to the court to have the issue of the validity decided upon by a judge.

In this scenario, Dr A was not particularly familiar with the patient and had not seen him since 2008, one year before he made his will. Mr M was subsequently diagnosed with Alzheimer’s disease. It would be difficult for Dr A to be clear that Mr M had testamentary capacity in and around the time that he made the will and therefore it may be prudent for him simply to confirm that he cannot assess on the issue of testamentary capacity.

This article was originally published in MPS Practice Matters Ireland, May 2014.

  1. Banks V Goodfellow (1870) 
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