Testamentary Mental Capacity put very simply; is having the understanding required by law to make or change ones Will. The 'Golden Rule' should always be followed when drawing up, or making amendments to a Will;
'No matter how straightforward matters may appear, when making a Will as a Testator who has suffered serious illness, a Testamentary Capacity Assessment should be considered, the findings of which evidenced and recorded. Thus reducing the likelihood of a contested probate, ensuring the testators wishes are honoured after their passing'.
As you can see the bar for requiring a Testamentary Capacity assessment is actually quite low. If your Solicitor, Estate Planner, or Will Writer has recommended that you have such as assessment they are being conscientious in protecting your wishes for your estate on your passing, by including one of our comprehensive Court standard Testamentary Capacity reports to be filed with your Will, thus reducing the likelihood of a later successful legal challenge.
Our Testamentary Capacity reports evidence the test of Banks v Goodfellow (1870); entailing the individual understands the nature of making a Will and its effects, and the extent of the property being disposed. The individual should be able to comprehend and appreciate the claims to which he or she ought to give effect and have no disorder of the mind that perverts his or her sense of right or preventing the exercise of their natural faculties in disposing of property by Will.
When we are assessing the individual, we will be record in our robust Court standard report whether they can retain information relevant to the decisions they are making regarding the disposal of their estate throughout the decision-making process. The report will evidence whether the individual is able to weigh up the information to help make those decisions and their ability to communicate this. The level of understanding required by the test varies according to the complexity of the will itself, the individual’s assets and the claims upon the individual.
Assessment Process and Duration:
The assessment itself will take approximately one hour to complete, however, this can vary depending on the complexity of the information discussed and consideration of any specialist needs. All necessary preparatory work will be completed prior to the assessment taking place and the Mental Capacity Assessor will ensure they have all the required information to achieve a comprehensive and detailed assessment. Assessments can take place in a variety of settings including; the individuals home, a care home, or in a hospital setting.
We can offer a Secure Video Platform to undertake our assessments or a face to face appointment. Video assessments are recognised and accepted by the Court as a robust method. For Testamentary Capacity assessments, the person facilitating the video assessment in the individuals home, must not be a Beneficiary or Executor of the Will. If you specifically need a face to face assessment please contact us to discuss your requirements.
Your Comfort is Our Priority
Our experienced Independent Social Workers will ensure that the individual is comfortable throughout the assessment process, promoting positive engagement in the decision-making process, alongside a person-centred and conversational approach throughout the interaction. Our approach is calm, supportive and always professional, with an aim of promoting a positive experience for the individual.
What is a Statutory Will
Our experienced Mental Capacity Assessors will do all we can to ensure that we get the best out of the individual on the day, using a friendly and conversational approach. Before the appointment we will carefully prepare to ensure the best communication methods are chosen to suit individual need, and that the time and date of the appointment is chosen to promote when the individual is likely to be at their best cognitively. However, occasionally despite out best efforts we have to make a conclusion that the individual lacks the necessary Testamentary Capacity. In these cases your Financial or Legal Advisor might suggest applying to the Court Of Protection for a Statutory Will. Thornton & Lee are able to assist with a specialist Mental Capacity report submitted to the Court alongside the Statutory Will application.
Members of the public are welcome to instruct us directly, however we advise that you seek independent legal or financial advice, in order to ensure that the completed assessment meets the needs of your situation.
Require Our Services Urgently?
We know that sometimes time is of the essence and work flexibly to fit in with your needs. Please get in touch to arrange an appointment.