A solicitor asks you to carry out a testamentary capacity assessment on a client who is changing his will. The patient (testator) is an 87-year-old man who is housebound following a stroke.
Carers visit him four times a day and he has daily visits from two of his adult grandchildren. He wishes to change his will to leave the value of his house and savings to his grandchildren, rather than his son and daughter, with whom he has lost contact. He is partially deaf and his speech has been impaired by the stroke.
Making the assessment
To carry out the assessment, you visit the patient at home. You do not have a copy of his original or revised will. Although he has dysarthria, he is able to explain what the function of a will is and that his estate is made up of the value of his house and his savings. He knows the amount of his savings but is unsure of the value of his house.
He can explain why he is changing his will in favour of his grandchildren and his decision seems rational and free from coercion. When questioned, he acknowledges that his children are likely to be upset by his decision.
The solicitor agrees to provide you with copies of the new will and the previous will, which concur with the information from the patient. You reassess the patient to carry out a dementia screening test, which reveals minor deficits in his short-term memory.
If a solicitor suspects testamentary capacity may be disputed once the testator has died, they may ask a GP to make an assessment.
GPs are suitably qualified to carry out this private work and our knowledge of our patients often gives us a valuable understanding of the relevant family dynamics. In complicated cases, the opinion of a psychiatrist or geriatrician may be useful.
The legal tests regarding the capacity to make or change a will are based on case law rather than on a single legal Act. The principle authority remains the judgment in Banks v Goodfellow of 1870.
The doctor is required to state that there is capacity on the 'balance of probabilities' rather than the criminal threshold of 'beyond reasonable doubt'.
The larger the estate or the more complicated the will, the greater the testator's understanding of these tests needs to be.
The same capacity test (see box below) applies to revoking a will.
The decisions a patient makes with regard to their will may cause disputes after their death and a surprising decision is more likely to bring into question their testamentary capacity at the time of writing their will. The GP needs to have explored and clearly documented the reasons for the changes to the will and that the patient meets the Banks v Goodfellow tests.
One case that went to the Court of Appeal established the principle that a will should be 'rational, fair and just'. This places an onus on the GP to document the reasons why the testator is making contentious will changes, so that they can be understood once the testator dies.
In particular, the GP needs to explore and document why potential beneficiaries are being included or excluded.
To test the patient's understanding of their will, the GP needs to know the broad outlines of the will's content. This should be sought from the solicitor before making the testamentary capacity assessment. Ideally, the new will and any previous wills should be reviewed.
The patient does not need to know the exact value of their estate, but they do need to have a reasonable idea of its worth. Failing to understand that they own their house would be inadequate, but knowing that they own their house without knowing its current value would be adequate.
Having a mental illness does not automatically mean that you cannot make or change a will. It is important to assess for mental illness, especially dementia and psychosis, and to explore whether these illnesses have influenced the will in a way that would not be expected of this person when they were well. In this case study, provided the short-term memory deficits did not prevent the testator from satisfying the tests, they would have testamentary capacity to make the changes to their will.
- Dr Mark Jopling is a GP in London