For many, making a will is a difficult thing to think about, meaning that a lot of people tend to constantly put off making one for another day. Unfortunately this can lead to problems when people leave it too long and are no longer have the mental capacity to make a will; that means that the only option is to apply to the Court of Protection to make a statutory will.

Tne interesting issue that has arisen through the Money Carer Foundation is when it is unclear whether or not a client has the necessary mental capacity to make a will as has been the case with ‘Jean’ in London.

The Money Carer Foundation is registered as deputy for ‘Jean’ through the Court of Protection. ‘Jean’ is elderly and lives alone in her own home in London, she is a widow and has a son who she is estranged from and hasn’t seen in years. Adding together the value of her home, her savings and investments ‘Jean’ has an estate worth approximately £500,000 and has never made a will.

As ‘Jean’ has never made a will her estate would pass automatically to her son, however in the past she has repeatedly advised the Money Carer Foundation she would not like anything to pass to him.

Given the fact that ‘Jean’ had already been assessed as lacking the necessary mental capacity to manager her property and affairs by the Court of Protection, it was expected that she would also lack the necessary testamentary capacity to make a will; as such the Money Carer Foundation instructed the same medical expert who had previously assessed her as lacking the capacity to manage her property and affairs to carry out a further capacity assessment in respect of her testamentary capacity to make a will.

The medical expert visited ‘Jean’ and reported back to the Money Carer Foundation that based on the legal test as set out in the case of Banks v Goodfellow, he believed ‘Jean’ did have the necessary capacity to make a will and that she wished for all of her estate to pass to her son. Armed with the medical expert’s report and the client’s instructions, the Money Carer Foundation proceeded to instruct a local solicitor to visit ‘Jean’ and take instructions in order to make a will.

Upon visiting the client the solicitor reported back to the Money Carer Foundation that she too believed ‘Jean’ had the necessary testamentary capacity to make a will, but that she now insisted she would like nothing to pass to her son and instead give everything to charity.

Given the continued changing of ‘Jean’s’ instructions the Money Carer Foundation needed to make a decision over how best to proceed. It was anticipated that if the solicitor drafted the will she was instructed to make then at first instance ‘Jean’ may change her mind at the point it came to sign the will; or secondly if she did in fact sign the will then when the will was eventually read and the estate administered then her son would challenge the validity of the will at the point it was made on the grounds that ‘Jean’ did not have the necessary testamentary capacity to make the will, despite the medical expert’s report.

In an attempt to reach a solution, representatives of the Money Carer Foundation travelled to visit ‘Jean’ in order to discuss the matter fully, on this occasion ‘Jean’ gave a third set of instructions, that she wished to leave most of her estate to her son and the rest to some friends, whose names she was unable to recollect.

Given the third set of instructions, it now seemed clear that a will could not be made on behalf of ‘Jean’ without a further capacity assessment being carried out. As such the Money Carer Foundation sourced and instructed a medically trained barrister, close to ‘Jean’ who could give a medical interpretation of the tests for testamentary capacity as provided in Banks v Goodfellow.

It is hoped that the report of the barrister will decide once and for all whether the Money Carer Foundation needs to make an application to the Court of Protection to draft a statutory will or whether ‘Jean’ does have the necessary capacity to make a will and provides definitive instructions.