A question of capacity

Why is a will often referred to as a last will and testament?

This isn’t a trick question. Really.

It’s called a will because it sets out your will – your wishes. And it’s called a testament because it is the formal evidence of those wishes. And why are we bothering with this?

Well, because we’ve been thinking about what ‘will’ actually implies, and what it doesn’t imply.

For many – perhaps most – of us, it implies that the person making their will did so freely, understanding what they were doing, and that it represents what they want to happen.

But that’s as far as it goes. What it doesn’t mean is that the testator (forgive the jargon) had a clean bill of mental health. Just that they had the ‘testamentary capacity’ to make their will. Which is a different thing altogether.

Let’s take a real-life example. It’s from a case that reached the High Court very recently, and it may help to clarify the point…

Challenging testamentary capacity

The will of an elderly farmer left the bulk of her estate to her son and his wife, who had shared the farming business with her. She left a much smaller cash sum to her daughter, who challenged the will after her mother’s death.

In the last few years of her life, according to the daughter, it seems that the old lady’s mental condition became increasingly unstable (our words). Evidence showed a need for increasing levels of supervision, delusional episodes, loss of memory and a general condition of dementia – all of which began before she made her will.

(In the interests of objective reporting, we ought to mention that much of this evidence was contested. But if you were to read the full judgment of the case – look for Lloyd v Jones – you’d note that the judge was not wholly convinced by one of the chief witnesses who contested it. Like so many cases where a will is contested, there is an undercurrent of acrimony, bitterness, accusation and counter-accusation, with a little bending of the truth thrown in here and there: it would make a great soap opera if it weren’t so tragic. But we digress…)

There was lots of detailed testimony about the lady’s various symptoms and their impact. And as the judge pointed out, it all raised real questions about her testamentary capacity. So before we tell you what happened, we should explain what that actually means.

What on earth is testamentary capacity?

‘Testamentary capacity’ is something more specific than ‘mental capacity’. It means the mental capacity to make a will – neither more nor less. If someone had testamentary capacity, it means that, at the time they made the will:

  • they knew they were making a will;
  • they knew the effect of making the will; and
  • they understood and approved of its provisions.

This implies that they also knew – roughly, anyway – the value of their estate, who their beneficiaries were, and other things which would make understanding the will possible. But it means no more than that.

‘Testamentary capacity’, unlike ‘mental capacity’, does not relate to a person’s general mental condition. Instead, it refers purely and simply to whether they knew what they were doing, as we have described above, at the time the will was made. You can read a whole lot more right here:

More on testamentary capacity

So, back to the story…

What happened next?

The judge concluded that the old lady did have testamentary capacity. It isn’t completely clear whether or not he believed that all the symptoms were exactly as claimed. But the point was that they didn’t get in the way of the lady’s ability to make her will. What mattered was that:

  • it wasn’t complicated – and so its terms could have been understood by her;
  • she knew who she wanted to leave her property to; and
  • she knew what that property was.

So the message, when all the evidence was stripped away, was that it takes more than a general mental deterioration to prevent someone making a valid will.

Accordingly, the will was upheld. A last will and testament, in the true sense of the term.

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