Using medical experts in testamentary claims – retrospective capacity assessments

The issues that surround whether a testator had testamentary capacity when they made their will is not one that is likely to disappear any time soon.

5% - 8% of people aged over 65 have some form of dementia and that by the time they get to over 85 years of age around 50% will have some form of dementia. It is clear therefore that our ageing population will face increasing questions around their capacity to make decisions and that some of these decisions may be challenged legally.

The area of contentious probate is therefore unlikely to see a decline in challenges to testamentary capacity.

An article in the National Library of Medicine on the role of the medical expert in retrospective assessment of testamentary capacity gives an assessment on the socio-medical and legal landscape facing our current generation.

"An ageing population with a high prevalence of cognitive and psychiatric disorders is about to make the greatest transfer of wealth in human history to a generation that is more complex in family structure and under greater economic stress than its parent generation."

Current test for testamentary capacity – Banks and Goodfellow

The current test for testamentary capacity is found in the case of Banks v Goodfellow and whilst it dates back to 1870, the courts have determined it remains the law when assessing testamentary capacity. Under Banks v Goodfellow, the testator must:

1. Understand the nature of the act and its effects;
2. Understand the extent of the property of which he is disposing;
3. Be able to comprehend and appreciate the claims to which he ought to give effect; and
4. Not be suffering under an insane delusion.
   

What is a retrospective capacity assessment?

A retrospective capacity assessment is an assessment of the deceased's capacity to make a decision. This will normally take place when the decision is legally challenged.  This arises frequently in relation to a deceased's capacity to execute a Will at the time instructions were given and when the Will was executed. This will involve an expert (normally a specialist psychiatrist) reviewing a number of medical and contemporaneous documents relating to the deceased in order to make findings in relation to the deceased's testamentary capacity.

In order for a thorough retrospective assessment to take place and for a timeline to be created, it is advisable to provide the expert with the following (and other documents may also be relevant - the more information the better):

• The death certificate;
• Witness Statements of those who knew the deceased well during their lifetime (and videos of the deceased if available);
• The deceased's medical records, including GP records, ideally from birth, hospital records and any referrals made;
• Social services records;
• The Will file and solicitors' attendance notes;  
• Care home records (they sometimes assess capacity at the time of admission);
• Any previous Wills the deceased may have executed.
  

A medical expert will review blood tests, prescriptions around the time the will was made and any side effects of any drugs taken, and any cognitive tests when considering their assessment.

Why can a retrospective capacity assessment be helpful?

When looking at the testamentary capacity of the deceased, the question must be asked whether the Banks and Goodfellow limbs were satisfied and inevitably there will always be cases where it is not abundantly clear at the outset if all four limbs are satisfied.

A retrospective capacity assessment can be extremely useful in a number of ways.

• It can give a more accurate account of the prospects of success of any potential claims.
• It can be persuasive in Alternative Dispute Resolution (ADR) by giving parties a more realistic starting point for negotiations.

Ultimately it is for the court to decide if the deceased had the requisite testamentary capacity when they made their will in dispute, but a retrospective medical expert's report can assist the court in its determinations where contested proceedings are taking place. It is worth noting that a retrospective capacity assessment is not binding on proceedings and that there may be situations where experts disagree on their findings.

When should charities consider an assessment and what are the indicators that a capacity assessment may be appropriate?

Each case will turn on their particular facts, however, here are a number of indicators or 'Red Flags' that legacy officers can look out for.  

These are:

• Age
• Medication
• Stroke/ Head injuries
• Delirium/psychosis
• Mental ill health
• Sudden Changes to intentions
• Diagnosis of dementia
• Confusion
• Historic illness (which could date back as far as birth)
• Eyesight issues
  

Conclusion

As anything could potentially be relevant, the more comprehensive the evidence sent to the medical expert, the better. Make sure that letters and reports referred to in the medical records are present and that anything that could relate to indicators of the deceased's health, both physical and mental is obtained in full prior to instructing a medical expert. If your charity has concerns around a deceased's capacity or there has been a challenge to the deceased's capacity and you are unsure on the potential outcome for your charity, please do contact Foot Anstey's Charity Contentious Probate team.