La regola d'oro e la capacità testamentaria

Whenever a lawyer prepares a volontà 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 established in the 1870 case of Banks contro Goodfellow. Nonostante l'introduzione del Legge sulla capacità mentale del 2005, which sets out a different test for assessing capacity, the court has confirmed that the common law test for testamentary capacity remains. This requires anyone making a will to be able to understand: 

1. la natura dell'atto e i suoi effetti 

2. l'entità dei beni di cui si sta disponendo 

3. il claims to which they ought to give effect 

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

With more complex family structures and increasing numbers of people 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 and the issues discussed. However, where there are any concerns about the testamentary capacity of the testator being challenged, asking appropriate questions and retaining records may not be sufficient. 

Questo è illustrato nel recente caso di Ginger contro Mickleburgh (2026). In 2013, the deceased reported that he believed the neighbours were harassing him in an attempt to get 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 seeking to have him declared as unable to manage his property so that they could take charge of it. He proceeded to make a will which largely benefited his sister, his nephew and his companion. 

Le figlie sostenevano che l'uomo soffriva di deliri di follia al momento della redazione del testamento e che questo doveva essere annullato. In base all'intestazione, l'eredità sarebbe stata divisa in parti uguali tra le figlie. 

Il giudice ha concluso che sia nel momento in cui ha dato le istruzioni al suo avvocato sia nel momento in cui ha eseguito il testamento, il defunto soffriva di allucinazioni e non poteva essere convinto che le sue figlie potessero agire in buona fede nei suoi confronti. Il testamento era quindi nullo per mancanza di capacità testamentaria e il defunto è stato dichiarato deceduto. 

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 and make a contemporaneous record of the examination and findings. The evidence 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.  

This case is a stark reminder of the importance 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. 

We are experienced in drafting wills 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 specialist to ensure that your wishes are upheld as far as possible. Our Clienti privati team can be contacted by phone on 020 7613 1402 or by email at privateclient@rfblegal.co.uk