When a client comes in to make or change a will, the focus is usually on what they want to leave and to whom. Whether they have the mental capacity to make that will in the first place is a question that is easy to overlook, particularly when the client seems perfectly well in conversation. It is also one of the most common reasons a will is challenged after death, when it is far too late to put right.
In my work as an independent social worker specialising in mental capacity, I carry out testamentary capacity assessments for solicitors, will writers and others across Teesside. Here is what is worth knowing before a will is signed.
What Testamentary Capacity Actually Means
Testamentary capacity is the capacity to make a will. It is assessed at the moment the will is made, and it is decision specific, just like any other mental capacity question. The test that courts still rely on is long established, and it asks whether the person understands what a will is and what it does, broadly knows the extent of their property, understands who might reasonably expect to benefit, and is not affected by a disorder of the mind that distorts their judgement in making the decision.
This is a different question from whether the person is generally well, orientated or able to hold a conversation. Someone can chat comfortably and still struggle with the specific elements a will requires.
Situations That Should Prompt A Closer Look
Certain circumstances make it sensible to consider capacity before proceeding, rather than assuming it is fine. These include a client with a diagnosis such as dementia, a recent illness or hospital stay, a significant change from earlier wishes, instructions that seem out of character, or a family member who is present, answering for the client or closely involved in the instructions.
None of these means the client lacks capacity. They simply mean that recording the position properly, at the time, is much safer than relying on memory later.
Why Timing Matters
Capacity can fluctuate. A client with a memory condition may have better and worse days, and capacity assessed in the morning may differ from the afternoon. Because the question is whether the person had capacity at the moment the will was made, an assessment carried out close to the signing carries far more weight than one carried out weeks earlier or after the event.
This is one of the reasons an early conversation matters. Leaving it until a client is much less well can leave a narrower window to establish the position properly.
What An Independent Assessment Adds
An assessment carried out by someone independent of the transaction provides an objective record of the client’s understanding, based on a face to face discussion with the person themselves. It documents the reasoning behind the conclusion, which can be valuable if the will is ever questioned.
It also helps protect the client. Where capacity is present, a properly recorded assessment supports their right to make their own decisions, even decisions others may disagree with. Where it is not, it prevents a will from being made that may later be set aside.
What This Looks Like In Practice
I carry out mental capacity assessments face to face, covering areas including testamentary capacity, capacity relating to Court of Protection matters, Lasting Power of Attorney, and capacity to litigate or make a gift. Reports are typically provided within fourteen days of the assessment, so solicitors and will writers have clear, evidenced findings to work from.
As a Best Interests Assessor and an experienced social worker, I also consider the wider circumstances around the client, which can be important where there are concerns about vulnerability or undue influence alongside capacity.
Bringing It Together
Testamentary capacity is easy to assume and difficult to prove after the event. Knowing the circumstances that call for a closer look, and arranging an independent assessment at the right time, protects both the client’s wishes and the professionals acting for them.
Frequently Asked Questions
What is testamentary capacity?
It is the mental capacity needed to make a valid will, assessed at the time the will is made.
When should a solicitor consider an independent capacity assessment for a will?
Where there are signs that a closer look is sensible, such as a diagnosis affecting memory or thinking, a recent illness, a sudden change in wishes, or a family member heavily involved in the instructions.
Do you carry out testamentary capacity assessments remotely?
No. Mental capacity assessments are always carried out face to face.
How long does it take to receive a report?
Reports are typically provided within fourteen days of the assessment.
Discuss A Case Or Arrange An Assessment
If you are acting for a client and have any question about their capacity to make a will, an early conversation can help determine the right next step. Get in touch to discuss a case or arrange an independent mental capacity assessment.