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Testamentary capacity and mental health

View profile for Paul Branch
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The testamentary capacity of a person at the time of making their Will is often questioned when a claim is made against its provision. The Courts will always consider each case on the specific facts involved, applying the test established by Banks v Goodfellow 1870. A key aspect of the test is that the testator ‘is not affected by any disorder of the mind that influences his Will in disposing of the property.’

In most circumstances this relates to long-term conditions such as dementia. But what about mental health issues such as depression which may affect a person for short or intermittent periods?

Key v Key 2010 established that testamentary capacity can be impaired by affective disorders, including depression. In this instance, Mr Key made a new Will within days of the death of his wife and the case that followed centred on his mental health at that time. Evidence supplied by medical practitioners indicated that a state of depression may increase the likelihood of the sufferer making decisions based on the suggestions of others, as well as affecting their ability to concentrate.

The judge found that although a person may have the capacity to understand the nature and effects of his Will and the property being disposed, covered in the Banks v Goodfellow test, they may not have the mental energy required to make independent decisions about who should be the beneficiaries of their Will as a result of their depression.

However, by itself, mental illness is insufficient to invalidate a Will. Due to its transitory nature, it may be difficult to prove whether a person with an affective disorder had testamentary capacity at the time of making their Will and, in turn, successfully challenge its provision on this basis.

If a challenge to a Will is successful, then the previous valid Will is applicable. If there is no previous valid Will, then intestacy rules apply. This means that the person challenging the Will may still not achieve the result that they are seeking. Therefore, it is always important for anyone who considers contesting a Will to seek legal advice on the strength of their case and the likely outcome before deciding whether to take action.

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