{"id":9158,"date":"2026-04-08T10:33:56","date_gmt":"2026-04-08T10:33:56","guid":{"rendered":"https:\/\/rfblegal.co.uk\/?post_type=insight&p=9158"},"modified":"2026-04-09T09:06:56","modified_gmt":"2026-04-09T09:06:56","slug":"la-regla-de-oro-y-la-capacidad-para-testar","status":"publish","type":"insight","link":"https:\/\/rfblegal.co.uk\/es\/perspectivas\/la-regla-de-oro-y-la-capacidad-para-testar\/","title":{"rendered":"La Regla de Oro y la capacidad testamentaria"},"content":{"rendered":"

Whenever a lawyer prepares a will<\/a> on behalf of a client, they need to be satisfied that the client has the necessary capacity to make a will. The test for testamentary capacity was\u00a0established\u00a0in the 1870 case of\u00a0Banks contra Goodfellow<\/em><\/a>.\u00a0<\/em>A pesar de la introducci\u00f3n del Ley de 2005 sobre la capacidad mental<\/a>, which sets out a different test for assessing capacity, the court has confirmed that the common law test for testamentary capacity\u00a0remains. This requires anyone making a will<\/a> to be able to understand:\u00a0<\/p>\n\n\n\n

    \n
  1. la naturaleza del acto y sus efectos\u00a0<\/li>\n<\/ol>\n\n\n\n
      \n
    1. el alcance de los bienes de los que dispone\u00a0<\/li>\n<\/ol>\n\n\n\n
        \n
      1. el claims<\/a> to which they ought to give effect\u00a0<\/li>\n<\/ol>\n\n\n\n

        They also need to not be suffering from a disorder of the mind that “poisons their affections, perverts their sense of right<\/a>, or prevents the exercise of their natural faculties” in disposing of their assets.\u00a0<\/p>\n\n\n\n

        With more complex family structures and increasing<\/a> numbers of people<\/a> experiencing mental health issues and living with dementia, it is more important than ever for lawyers to be inquisitive and vigilant when instructed to prepare a will. In many cases, where there is a clear explanation and justifiable rationale for the way in which the will is being made, it will be sufficient to discuss possible challenges and make and retain a detailed attendance note recording the thinking behind the decisions<\/a> and the issues discussed. However, where there are any concerns about<\/a> the testamentary capacity of the testator being challenged, asking appropriate questions and retaining records may not be sufficient. <\/p>\n\n\n\n

        As\u00ed lo ilustra el reciente caso de\u00a0Ginger contra Mickleburgh<\/a>\u00a0<\/em>(2026). In 2013, the deceased<\/a> reported that he believed the neighbours were harassing him\u00a0in an attempt to\u00a0get him to sell his property at a low value. This led to him being sectioned, and during that time, his daughters and former wife took personal belongings from his home for safekeeping. He believed that his daughters were\u00a0seeking\u00a0to have him declared as unable to manage his property so that they could take charge of it. He\u00a0proceeded\u00a0to make a will which\u00a0largely\u00a0benefited\u00a0his sister, his\u00a0nephew\u00a0and his companion.\u00a0<\/p>\n\n\n\n

        Las hijas alegaron que sufr\u00eda delirios mentales cuando se otorg\u00f3 el testamento y que \u00e9ste deb\u00eda anularse. En virtud de la sucesi\u00f3n intestada, la herencia se dividir\u00eda a partes iguales entre las hijas. <\/p>\n\n\n\n

        El juez concluy\u00f3 que tanto en el momento en que dio las instrucciones a su abogado como cuando otorg\u00f3 su testamento, el difunto sufr\u00eda delirios y no pod\u00eda estar persuadido de que sus hijas pudieran haber actuado de buena fe hacia \u00e9l. Por lo tanto, el testamento era nulo por falta de capacidad testamentaria y el difunto muri\u00f3 intestado. <\/p>\n\n\n\n

        The judge made the point that in a situation where the person making the will had been sectioned less than a year earlier, it would have been advisable for the will maker to have followed the golden rule set out by Lord Templeman in 1975. This provides that when making the will of an elderly testator or a testator who had suffered a serious illness, the lawyer should arrange for a medical practitioner to satisfy themself of the testator’s capacity and understanding<\/a> and make a contemporaneous record of the examination and findings. The evidence<\/a> of the medical practitioner would then generally be given considerable weight in any subsequent challenge to the validity of the will on the ground that the testator lacked capacity. Although there was a registered mental health nurse present when instructions for the will were given, the nurse was not made aware of the appointment with the lawyer in advance and was not asked to conduct a capacity assessment.  <\/p>\n\n\n\n

        This case is a stark reminder of the importance<\/a> of arranging for a formal assessment of capacity to be carried out in situations where there are likely to be disappointed beneficiaries and the lawyer is aware that the client has suffered from mental health issues. <\/p>\n\n\n\n

        We are experienced in drafting wills<\/a> and will be able to facilitate capacity assessments either with your own doctor of the doctor is willing to assist or with a mental capacity<\/a> specialist to ensure that your wishes are upheld as far as possible. Our Particulares<\/a> team<\/a> can be contacted by phone on 020 7613 1402 or by email at privateclient@rfblegal.co.uk<\/a> <\/p>","protected":false},"author":12,"featured_media":9159,"parent":0,"menu_order":0,"template":"","format":"standard","meta":{"_acf_changed":false,"om_disable_all_campaigns":false,"_uf_show_specific_survey":0,"_uf_disable_surveys":false,"footnotes":""},"categories":[22],"tags":[],"class_list":["post-9158","insight","type-insight","status-publish","format-standard","has-post-thumbnail","hentry","category-wills-probate"],"acf":[],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t