Testamentary Capacity

Testamentary Mental Capacity Assessment

What is a Testamentary Capacity Assessment?

Testamentary Capacity Assessments are used to ascertain if a person has the capacity to make a Will.

What do Testamentary Capacity Assessments include?

Our Testamentary Capacity Assessments include all the necessary preparatory work and organising the technical side of a remote assessment via video link, a Testamentary Capacity Assessment, a written report that can be kept alongside your Will and reading time. Whilst our Assessors would normally be able to act as a witness to a Will, at present the law does not permit us to act as a witness via video link.

What case law do you use?

Testamentary capacity is not covered by the Mental Capacity Act (2005), therefore Banks v Goodfellow, another legal test is required. For Testamentary Capacity Assessments, this case law is our benchmark and is included in all the accompanying reports.

What information do you need from me?

We will request information such as a family tree, the size of their estate and whether they have any dependants. During the capacity assessment this information is used to verify what the client says. The Assessor then uses the information to develop questions asked and ensures that all decisions being discussed are covered in sufficient depth.

If you have a copy of the Will, it is helpful to provide us with it prior to the assessment.

Please contact us. We will provide you with a copy of our bespoke referral form, which we will happily talk through with you.

What happens in the Testamentary Mental Capacity Assessment?

The assessment will take place via video link through the use of a smartphone, tablet, laptop or computer with webcam. This can take place at the client’s home or at a location they feel comfortable in and comprises of an in-depth conversation. It is not a test. The Assessor will use the information provided before the assessment to engage in open questions surrounding the Will, the person’s estate and their family and friends. If a copy of the Will has been provided, the Assessor will also go through its contents. Alternatively, if a copy of the Will has not been provided, the Assessor will similarly discuss the individuals wishes for their content of the Will.

The assessment will take approximately one hour.

Why is a Testamentary Capacity Assessment necessary?

If there is question over someone’s capacity or there could be seen to be doubt then a capacity assessment can help ensure that the person creating or changing their Will is doing so with understanding and without duress.

The assessment can help ensure the client continues to have a voice. They have an opportunity to express their wishes in a safe environment with no outside influence.

What happens if a client lacks testamentary capacity?

If a person lacks testamentary capacity it is possible to apply to the Court of Protection to make a Will on their behalf. This is known as a Statutory Will. Using the evidence we gathered during the Testamentary Capacity Assessment, we can provide the necessary evidence to support such an application to the Court of Protection.

To discuss arranging a Testamentary Capacity Assessment, please contact us.