Disputing A Will Using Lack Of Mental Capacity
What Is Mental Capacity?
A person making a will must have the mental capacity to make it. In other words they must be able to comprehend the extent of their estate and they must be aware of the people who they would usually be expected to provide for (even if they choose not to). They must also be free from any delusion of the mind that would cause them reason not to benefit those people. These principals were first established in a very old case called Banks v Goodfellow in 1870. The judgement in this case used alongside the Mental Capacity Act 2005, still holds fast today.
What is the Golden Rule?
Will disputes citing lack of mental capacity are now more frequent, as more people are making their Wills later in life and so could be suffering from some form of dementia. This has resulted in the court establishing something known as the "Golden Rule", which provides guidance to solicitors when preparing Wills for vulnerable or elderly people. The case of Re Simpson  states that there is one Golden Rule to be observed - however straightforward the will and however tactless the suggestion, ‘the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings.’
One of the most important parts of a Will writer's job is to assess a client’s mental capacity and be sure they meet with the requirements of creating a valid will. However, it is not surprising that informing a client that there may be concerns regarding their mental facilities is never easy. The burden of determining whether a client has testamentary capacity to make a will is crucial in the preparation of every will. Routh Clarke always take the necessary steps to ensure a Will is valid, even if this means some difficult discussions are needed.