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Testamentary capacity – understanding the part you play

Post date: 18/06/2019 | Time to read article: 4 mins

The information within this article was correct at the time of publishing. Last updated 20/06/2019

Navigating the legal background and providing practical advice for doctors, Ricky Kimachia, advisory case manager at Medical Protection, considers recent queries from members regarding testamentary capacity.


You are approached by your patient’s solicitor to confirm their capacity to write a will. Are you required to respond and if so how do you go about writing back?

In another circumstance, a different patient of yours has died and you are to give your opinion on whether they had capacity, at the time, to write or make a change in their will – how should you respond?

When a will is being written, changed or disputed, you may be asked for your opinion regarding a patient’s capacity. For a will to be valid, the person who made it must have ‘testamentary capacity’ – the mental ability, recognised by the law, to make or amend the will.

If you provide an opinion on a patient’s testamentary capacity, this opinion, and your experience in assessing for such capacity, may be challenged and you could find yourself involved in a court case - having to present evidence in writing or in the witness box. Therefore, a clear understanding on what testamentary capacity is and how to assess it is necessary before responding to such requests for your opinion.

The test of testamentary capacity

Testamentary capacity is not the same as general mental capacity. The Banks v Goodfellow case1 outlines the test of testamentary capacity, stating a person making a will (known as a ‘testator’) must:

  • fully understand the nature of making the will and its effects
  • understand the extent of the assets to be disposed of (e.g. property, financial investments and any savings)
  • be capable of understanding who will inherit from their will
  • be of sound mind, enabling them to make the decisions without the influence of mental illness.

In this case, the testator – John Banks – had been in care for some years after a diagnosis of schizophrenia. He was discharged but continued suffering delusions, including one where he believed he was being persecuted by a man named Featherstone Alexander.

Following his sister’s death, Mr Banks had lived with his niece, Margaret Goodfellow. In his will he left his whole estate to Margaret, but unfortunately she died only two years after him. Margaret’s estate then passed onto her paternal half-brother, who was not a blood relative to John Banks.

John Banks Junior, the son of John Banks’ half-brother, then decided to contest the will on the basis that the testator had not had testamentary capacity when the will had been made.

The Lord Chief Justice found Mr Banks’ will to be valid, stating that while he had suffered from schizophrenia and delusions of the mind, it had not influenced his decisions on who should benefit from his estate once he died.

So where does the role of a doctor come into all this?

The golden rule

In 1975, ‘the golden rule’ for testamentary capacity was set out in the Kenward v Adams case2 as “… the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings.”

In the majority of cases, it will be assumed that an individual has the capacity to make a valid will. It’s only if this presumption is challenged that a doctor may be required to be involved.

As a medical practitioner, it’s your duty to assess whether your patient suffers or suffered with any mental illness that may have affected making a valid will. If a patient is suffering from a mental illness it does not necessarily mean they lack testamentary capacity, but it may influence their ability to make complex decisions related to their will.

Every patient needs to be assessed based on their individual circumstances and any factors that may affect them. It’s important to assess whether they could be easily influenced by other people and whether they have made decisions on their own merit. While family members or other individuals may view a decision made in a will to be irrational, this has no effect on whether the will is legally valid or not.

Capacity considerations

If you find yourself in the position where you are asked to give an opinion on a patient’s testamentary capacity, you should consider the following:

  • why the solicitor is asking you to provide your opinion and whether you have the appropriate consent to give them information about a patient
  • whether you have sufficiently applied the legal test set out in Banks v Goodfellow and retrieved the relevant information required to do so
  • if you have the competency to carry out a testamentary capacity assessment based on GMC guidelines
  • making detailed file notes to explain how you have come to your decision, recording the assessment you carried out, the patient’s understanding of the situation and the background information provided to you by the solicitor.

There is no strict obligation for a doctor to conduct an assessment for testamentary capacity. This is because, a doctor “must recognise and work within the limits of your competence” (Good Medical Practice, paragraph 14). To sufficiently assess in accordance with the legal test for testamentary capacity may be reasonably considered beyond a doctor’s experience. 

Where you have been asked to assist a patient writing a will, or if you are concerned as to your level of expertise to conduct an assessment for testamentary capacity as described above, you may wish to offer to conduct a mental capacity assessment rather than a full assessment for testamentary capacity; so as to still help the patient concerned. This would assist to fulfil the fourth element of the above legal test whilst appropriately leaving the solicitors’ firm to seek evidence or support from another doctor to fulfil the remainder of the test.

Similarly, if you are asked to comment on past testamentary capacity of a deceased patient, you may decline to comment if you are concerned about your competency level, but instead disclose any relevant information regarding the patient’s mental capacity at the time; subject to relevant data protection legislation and the GMC’s guidance relating to disclosing information after a patient has died.  

If you receive similar correspondence in relation to testamentary capacity or any other medicolegal matter and you would like advice from Medical Protection, contact our advice line on 0800 561 9090.

References

1 Banks v Goodfellow (1870)

2 Kenward v Adams (1975), The Times, 20 November 1975

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