EVALUATING TESTATOR'S CAPACITY
Introduction
There are various Court cases where the capacity of a testator to write a valid will has been challenged based on the idea that the person mental capacity does not allow him or her to do so. The Bank' v Goodfellow case formed the basic aspects that a testator should satisfy for the will to be valid. The courts have sought practitioners' opinion on the capacity of a person to make a will.
Review
Testamentary capacity, in legal terms, refers to a person mental and legal ability to make a valid will or to alter it. If a testator makes a will but does not have the testamentary capacity at the time of its execution, the will is considered invalid (The Gazette, n.d). The Mental Capacity Act of 2005 that started being implemented in 2007 has not been clearly defined the case of testamentary capacity and courts have not yet provided a solid guidance in terms of its application (Jacob, & Gunn, 2013). It has not clearly given the clear guidance in relation to the extent of its application and where such has been provided, whether the extent to which it influences courts to practice in determining testamentary capacity. Different cases in the past have brought forward where the capacity of a testator has been challenged in that he was unable to mentally do so. This issue was complicated once Mental Capacity Act 200 was enacted and as aforementioned, it is silent in terms of will make. However, it can surely influence the decisions of the court in considering the issues of the capacity of a testator (Jacob, & Gunn, 2013). The major starting point when considering the issue of testator's capacity is the Banks v Goodfellow case that formed the basis of aspects that a testator must fulfill. He or she should have an understanding of nature if making a will and the possible effects. He should also understand the scope of the property he is disposing of and must have the capability to comprehend and realize the claims to which they should give effect. The testator should not be disabled mentally in a way that distorts their sense of right or hinders them from exercising their natural faculties in their wilful disposal of the property (Sloan, 2017).
These principles laid down in the judgment formed a general criterion that is accepted for determining whether a person is able to make a will especially in countries that based their laws in the Anglo-Saxon tradition. In Bank's v Goodfellow case, the person who made the will had a paranoid delusion that he would be harmed by a fictitious person. At the time of deliberating the case, it was found that the Mr. Banks' delusion did not influence his decision to give his niece by marriage the money instead of giving to a distant blood relative (Sloan, 2017). Other court cases have also handled the issue of testamentary capacity. The case of Simon v Byford and others can explain more on Court's approach in determining the testator's capacity to make a will. The case involved a testator who was paralyzed and incapable of speaking due to multiple sclerosis, the hearing judge implied that it was important for the testator to have enough understanding so as to make a will that is "rational, fair and just" (Jacoby & Steer, 2007). There was no good reason for the testator to disinherit the daughters of his property in favor people who managed his stud farm.
The decision by judges to declare this will invalid was upheld in the Court of Appeal and it was clearly noted that the there was no alteration of the fundamental validity of this test as Banks v Goodfellow was being interpreted (Jacoby & Steer, 2007). The requirement that a person should know the extent of his estate does need him to know its whole value. The courts do not require evidence of actual understanding on the testator's part but their capacity to comprehend these issues. In legal terms, capacity may be needed through the appropriate explanation. The know-how of the moral claims of people whom a testator should supposedly consider in the will frequently result in trouble. The testator is permitted by the English law offer their wealth to any person he or she pleases but the statutory safeguards for their dependents have to be considered (Jacoby & Steer, 2007). However, this is allowed as long as the Banks v Goodfellow test is satisfied. However, the above court's decision does not mean that delusions necessarily invalidate a specific will except when the disposition of the testator is influenced by the same. For instance, if a person with psychotic problems leaves all his property to his wife under the belief that he will be executed for evading tax, such a will may most likely be termed valid since his disposition of the property was not influenced by the delusions (Jacoby & Steer, 2007).
There is also a golden rule that courts follow in determining a testator's capacity to make a will and this is seen in the judgement issued for Kenward v Adams case. In this case, Mr. Justice Templeman outlined s golden rule that should always be observed in relation to a testator who is aged or one with serious illness. This is regardless of how simple the issue may seem or how hard or clumsy it may be appear to suggest the need for taking precaution (Jacoby & Steer, 2007). The rule holds that the writing of the will by this testator should be approved or witnessed by a medical professional with knowledge of understanding and capacity of the testator and one that has findings, records and examinations of the person in question (Jacoby & Steer, 2007). This means that a court will seek the opinion of a medical practitioner when determining the capacity of the testator to write a will. This golden rule is very critical although some potential pitfalls have been pointed out. To begin with, even though the doctor is required to examine the testator, some practitioners are reluctant to participate or just prefer to write a letter on the basis of their understanding of the patient. This involves paying little attention to the required legal tests. In addition, lawyers at times ask the doctors to witness the writing of the will but fail to advise them of the specific legal tests and thus may fail to conduct full examination of the testators' mental state. Finally while the golden rule offers strong evidence in case of litigation in future it does not guarantee the will's validity. In this case, the position taken by one judge, His Honour Alastair Norris QC, is that doctors and lawyers must consider the rule in provision of quality evidence in case of a legal challenge (Jacoby & Steer, 2007).
In conclusion, the Mental Capacity Act of 2005 has attempted to address the issue of testamentary capacity but is silent on the making of a will. The Banks' v Goodfellow case laid the foundation of other court's decisions on the capacity of a testator in writing a will. The information provided by doctors on mentally challenged testators does not necessarily invalidate a will but offers enough evidence where legal challenges arise.
References
Jacob, R., & Gunn, M. J. (2013). Mental Capacity Legislation: Principles and Practice. RCPsych Publications.15-20
Jacoby, R., & Steer, P. (2007). How to assess capacity to make a will. Bmj, 335(7611), 155-157.
Probert, R. (2011). Family Law in England and Wales. Kluwer Law International. 216-220
Sloan, B. (2017). Borkowski's Law of Succession. Oxford University Press. 70-71
The Gazette, (n,d). What is testamentary capacity? Retrieved from: https://www.thegazette.co.uk/all-notices/content/100844
