User:HeadsOrTayls/Testamentary capacity

copied from Testamentary capacity

Article Draft
Will delete the following paragraph from the current article (this same idea is described below where it fits better organizationally):

One of the most authoritative texts on the common law test for capacity is the judgment of Martin Nourse QC in Re Beaney, deceased. When someone gives away a substantial proportion of their assets, the general rule is that they must have the same degree of capacity as is required for a will. "The degree or extent of understanding required in respect of any instrument is relative to the particular transaction which it is to effect. In the case of a will the degree required is always high. In the case of a contract, a deed made for consideration or a gift inter vivos, whether by deed or otherwise, the degree required varies with the circumstances of the transaction. Thus, at one extreme, if the subject-matter and value of a gift are trivial in relation to the donor's other assets a low degree of understanding will suffice. But, at the other, if its effect is to dispose of the donor's only asset of value and thus for practical purposes to pre-empt the devolution of his estate under his will or on his intestacy, then the degree of understanding required is as high as that required for a will, and the donor must understand the claims of all potential donees and the extent of the property to be disposed of."

'''(NOte from Tess: It makes sense to delete the paragraph above. But maybe it he spirit of collaboration with whomever added this initially, try to preserve the citation to this case.  What do you think about adding a "Case Law" section or something at the end of the page, citing a few landmark cases relevant to testamentary capacity?  (see eg., the bottom of the Competence (law) page). (thought note I do see it is cited as a foundational english case below in that section. I wonder if you feel like you know enough to integrate the testamentary capacity information from the "england and wales" section such that it features a story of how the law came to be the way it is, and highlights any major areas of difference between US and England/wales maybe? It seems to me like maybe this historiecal background here should be historical to the whole article, as it shaped this whole area of law (vs. being separated as part of a different body of law. But - that is definitely a bigger edit.  What you've done here in terms of fixing the references that were presented as footnotes is already a real improvement to this page)'''

Lawyers for people whose testamentary capacity might be called into question often arrange for a will execution to be video taped. On video, they ask the testator about his property and about his family, and go over the contents of the testator's will.

The testamentary capacity matter is most frequently raised posthumously, when an aggrieved heir contests the will entered into probate. For this reason, in the absence of the ability to interview the testator directly, a forensic psychiatrist or forensic psychologist may evaluate a testator’s capacity by reviewing videotape of the drafting of the will, emails or letters, medical records, and other records. Along with resolving an examinee's testamentary capacity, a forensic specialist may observe for signs of undue influence, particularly susceptibility to undue influence.

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Testamentary capacity in England and Wales
Where a will is rational, professionally drawn, seemingly regular in form and is made by a person whose capacity is not in doubt, there is a presumption that the will is valid. This presumption can be rebutted by a challenger to the will showing that there is a real doubt about capacity. At this point the burden of proving capacity moves to the propounder of the will to then show that there was testamentary capacity at the time the will was executed.

The current test for testamentary capacity comes from the decision in Banks v Goodfellow (1870). This case concerned the validity of the will of John Banks. In modern terms he would most likely be described as a paranoid schizophrenic. He suffered from delusions that he was being persecuted by devils (they were sometimes visible to him) and also by a deceased local grocer. His will was challenged on the basis that he was insane and therefore unable to make a will. The will was found to be valid after trial by jury, before Brett J, at Cumberland Spring Assizes in 1869. On appeal, this judgment was confirmed unanimously by a panel of four appeal judges in Queen's Bench. The will was found to be valid, not influenced by his delusions, and deemed rational, being in favour of his only close relative (who also lived with him). In his judgment, Cockburn CJ set out a test of the capacity to make a valid will, which is still applied in many Anglophone jurisdictions today. It is now considered as being composed of four distinct elements: (1) understanding the nature of the act of making a will and its effect, (2) understanding the extent of the property that is to be disposed of, (3) understanding the claims of family or friendship to which ought to be given effect and as a separate element, (4) that no mental disorder or delusion shall influence his will in way that would not have occurred otherwise. This remains the test today, notwithstanding the Mental Capacity Act 2005.

In addition, in the original wording, (1), (2) and (3) are all approached as not requiring actual understanding, but instead being capable of understanding. As this is a common law test created by judges, it is capable of being modified by judges, as they see fit in the light of modern circumstances. Modern psychiatric knowledge has allowed the test to be developed by having a further element added and that is for the testator to be capable of exercising his decision-making powers.

This test is focussed on the ability of the particular individual and his particular estate. The outcome is always unique to the particular facts. Where the circumstances and assets of a testator are simple or straightforward, the level of capacity required will be lower than that for the testator with complex circumstances and assets. Additionally, this test is expressly designed for the capability of a person to make a will. It is not, therefore, a test that has an application to any other transactions, save one – the capacity to make substantial lifetime gifts. The leading English decision in this area is Re Beaney (deceased).

The test in Banks v Goodfellow has proved to be long lasting as it was not a definition in medical terms, but a plain English definition of what a person should be capable of understanding in order to make a will. The test is still applied by a court. A medical opinion, while being potentially valuable evidence, is not determinative of capacity unless accepted as such by the court. The evidence of the will draftsman has considerable value to the court, if he has carried out his work to an acceptable standard. The will draftsman is required to have knowledge of the legal test of capacity and what its implications are in order to record his relevant observations of the testator and form an opinion of his client's capacity. This, coupled with much greater prominence of negligence claims against will draftsmen, means that a careful understanding of what the draftsman should be doing becomes vital.