Why Complete a Testamentary Capacity Assessment?

Did you know that your Will could be contested after your death? That the Court may even decide that it’s invalid, or even that an individual not named as a beneficiary may be able to lay argument to the Court that they have been unfairly left out?. This week the Telegraph newspaper has reported to its readers that post Pandemic there has been a sharp rise of nearly 20% of family inheritance battles. What about if there was a way to reduce the likelihood of a successful legal challenge to your estate after your death? Well this is where a special type of mental capacity assessment called a Testamentary assessment comes which can support with reducing a successful later legal challenge on the grounds that the testator did not have testamentary capacity at the time the Will was executed, or that the testator had been subjected to undue influence (coercion) at the point the Will was executed.

Families are complicated, aren’t they? Arguably never more so than in today’s world. Reconstituted families involving separations, re-marriages, step children, and sometimes those who are not related to us by blood or marriage at all, but rather friends who we have chosen to be our family. It might be that there are multiple people within your network who could make a claim to your estate, but whom you would categorically not wish to financially benefit from you now, or ever. Similarly, it might be that you wish to make a beneficiary of an individual or organisation that wouldn’t be an obvious choice to others who know you, and those in your network might challenge your judgement after you are no longer here to offer rationale to your decisions.

The Golden Rule for Testamentary Capacity

The Golden Rule is actually more ‘best practice’ for Legal and Financial professionals rather than an actual ‘rule’. In the case of Re Simpson [1977] the Judge suggested that this rule should always be followed when making a Will by an ‘aged’ or ‘seriously ill’ Testator; that the composition of a new Will should always be approved by a professional who can consider and record a comprehensive summary of the Testator capacity at the time the Will was drawn up.

Sounds a bit discriminatory, doesn’t it? And certainly we complete many testamentary assessments for older people whose minds are frankly maybe even sharper than our own. The point being, the presence of a comprehensive Testamentary assessment greatly reduces the risk of a successful challenge after your passing away. This ensures the people you want to benefit from your estate, do just that. But perhaps more importantly, so our clients tell us, is that they want affairs to be as simple as possible for the people they care about when they’re grieving. If an hour or so of their time to chat to our Mental Capacity Assessor will prevent loved ones from the stress of a legal challenge after their death, then they tell us this is time and money well spent.

Protecting Your Wishes After Your Death

Our Mental Capacity Assessors have discovered that an individual’s motivation for including and excluding beneficiaries from their Will are as varied as the colours of the autumn leaves. Some of these value driven decisions are based upon very practical reasons such as who they believe ‘requires’ financial support on their death, versus those who they have appraised to already be financially sufficient. Some are emotive driven instead, such as a strong desire to reward a prospective beneficiaries love and loyalty, or equally to exclude a party who might be perceived to have caused hurt, betrayal or abandonment.

It’s Your Will and Your Decision 

Thornton & Lee’s professional values are rooted in empowerment. We are not here to judge your decision making in choosing beneficiaries in a Testamentary capacity assessment, but rather to evidence that you gave due thought and reflection when drawing up your Will. Equally we discuss with you the nature of your estate, so we can evidence in very simplistic terms in this Court standard document that you understood what you had, who you wanted to give it to, the impact upon those you chose to leave out, and that you were of sound mind when you made the decision. 

What about coercion and undue influence

Coercion is ‘persuading someone to do something’, and when it comes to Will’s, if an argument can be made that the individual who made the Will was being coerced at the time it was executed, then the Will may not be valid, and vulnerable to being successfully contested later down the line. At Thornton & Lee we triage each individual case very carefully to ensure the best method of assessment is chosen to suit the testators needs and circumstances. When we meet with an person to be assessed another essential part of the appointment process is exploring undue influence and coercion with the individual to assess and conclude within our report that the Testator is making decisions for the distribution of their estate within their new Will of their own free will. Consequently, all face-to-face assessments completed must be undertaken without any proposed beneficiaries in attendance, although they are welcome to be at the appointment venue for initial introductions and to ensure that their loved one is at ease and comfortable to proceed, before leaving. However, face-to-face testamentary capacity assessments are not for everybody, and there might be occasions whereby a video assessment is preferred by the indivdual to be assessed due to personal or practical reasons. At Thornton & Lee we suggest that if the individual being assessed is unable to facilitate the video appointment themselves, that an excellent solution is for the video assessment to take place at their Legal Representatives office, with support there to operate the video technology. This approach ensures that the report produced is legally robust and can fully and objectively explore coercion and undue influence, which can then be documented within the report and making it legally robust.

Why We Enjoy What We Do

From supporting a Testator to ensure that a devoted adult child benefits from a loving fathers estate, to providing the evidence in a Testamentary assessment to assist with a Testator’s wishes to exclude an adulterous spouse from their Will, to us the privilege of being a cog in the wheel that helps honour an individuals wishes after their passing, really does lead to tremendous job satisfaction as the authors of a Testamentary capacity assessment. 

If you would like to get in touch regarding a Testamentary assessment then please do reach out and one of our friendly team will be happy to help. Call us today on 0333 772 9315 or send us an email on info@thorntonlee.co.uk. Alternatively, you can fill out our contact form below and someone will respond to your enquiry within 24 hours.