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Testamentary capacity

Published online by Cambridge University Press:  05 August 2024

Alistair Burns Open the ORCID record for Alistair Burns [Opens in a new window] ,
Hugh Series Open the ORCID record for Hugh Series [Opens in a new window] ,
James Warner ,
Andrew Bishop  and
James McKean
Alistair Burns*
Affiliation:
Emeritus Professor of Old Age Psychiatry in the Division of Neuroscience and Experimental Psychology, Faculty of Biology, Medicine and Health, University of Manchester, UK and an honorary consultant old age psychiatrist at Oxford Health NHS Foundation Trust, Oxford, UK. From 2010 until 2023, he was the National Clinical Director for Dementia (and Older People's Mental Health) for the NHS in England, UK.
Hugh Series
Affiliation:
Consultant old age psychiatrist at Oxford Health NHS Foundation Trust, Oxford, UK and a member of the Law Faculty, University of Oxford, Oxford, UK. He has a particular interest in medical law, and is a member of the First Tier Tribunal (Mental Health).
James Warner
Affiliation:
Consultant old age psychiatrist at Halcyon Doctors, London, UK and an honorary consultant psychiatrist at Central and North West London NHS Foundation Trust, London, UK. His current work focuses on medico-legal consultations.
Andrew Bishop
Affiliation:
Partner at Rothley Law, Birmingham, UK, where he deals with disputes relating to wills, trusts and estates. He is ranked as an associate to watch in the Chambers and Partners High Net Worth Guide and a rising star in the 2023 Legal 500.
James McKean
Affiliation:
Barrister at New Square Chambers, London, UK. He specialises in disputed wills and estates, where he is ranked as a leading junior in the Legal 500. Much of his practice concerns the question of whether an individual has the requisite mental capacity to make a will or gift.
*
Correspondence Alistair Burns. Email: alistair.burns@manchester.ac.uk
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Summary

To make a valid will, a person should be able to understand the nature and consequences of doing so, the extent of their estate and the claims others may have on it. No disorder of mind should be present that would affect their testamentary decisions, and clinicians are therefore often asked to give an opinion on whether a person has testamentary capacity. This article discusses the legal issues involved, with reference to UK case law (in particular, the legal test of Banks v Goodfellow (1870)), and outlines the requirements of testamentary capacity assessment (including retrospective assessments), the clinician's responsibilities when requested by a solicitor to make an assessment of capacity (‘the golden rule’) and what they might expect if appearing in court to give expert witness regarding testamentary capacity. Fictitious case studies are presented illustrating certain points in testamentary capacity assessment.

Keywords

Psychiatry and lawtestamentary capacitymental capacityretrospective assessmentmedico-legal
Type
Article
Information
BJPsych Advances , First View , pp. 1 - 6
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Copyright
Copyright © The Author(s), 2024. Published by Cambridge University Press on behalf of Royal College of Psychiatrists

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References

References

Barlow, RFD, Wallington, RA, Meadway, SL, et al (2021) Williams on Wills (11th edn), vol. 1. LexisNexis Butterworths.Google Scholar
British Medical Association, Law Society (2022) Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers (5th edn). The Law Society.Google Scholar
Civil Justice Council (2014) Guidance for the Instruction of Experts in Civil Claims. Civil Justice Council (https://www.judiciary.uk/wp-content/uploads/2014/08/experts-guidance-cjc-aug-2014-amended-dec-8.pdf).Google Scholar
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Banks v Goodfellow (1870) LR 5 QB 549.Google Scholar
Parker v Felgate (1883) LR 8 PD 171.CrossRefGoogle Scholar
Banks v Goodfellow (1870) LR 5 QB 549.Google Scholar
Parker v Felgate (1883) LR 8 PD 171.CrossRefGoogle Scholar
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