Do you have “capacity” to make a Will?

Usually, drawing up a Will in Scotland for our clients is relatively uncomplicated. Clients tell us about their intentions and what they would like to happen after they have passed away. We then give advice on how this can be set out in their Will. After that, we prepare a draft of you Will and send this to you for review. You then sign your Will following your review and at that point you have a valid Will.

There is, however one important aspect of making a Will that must be overlooked. This important aspect is whether the person making the Will has the capacity to make the Will.

What is capacity to make a Will?

You need to consider a number of factors to make a determination of capacity to make a Will. Perhaps the most basic test is whether the person making the Will is old enough. In Scotland, you need to be at last 12 years old to make a Will. We tend not to have clients as young as that who wish to make a Will!

The next test is the mental capacity of the person making the Will. This might not be immediately obvious but it is an essential test. A person who does not have sufficient mental capacity cannot make a valid Will.

How can you test for mental capacity of the person making a Will?

We have all watched films where the dying hero, making their Will on their deathbed that they are of sound mind. Whilst this is all very dramatic for the movies, being of sound mind is an essential component of the capacity to make a Will.

You can establish capacity through two sets of tests. One set of tests is based on common law and the other set are set out in the Adults with Incapacity (Scotland) Act 2000.

Tests for capacity to make a Will at common law

These tests have their foundation in the English case of Banks v Goodfellow decided in 1870/ The judges in this case decided that the person making the Will “must be able to understand the nature of the act and its effects” and “the extent of the property of which he is disposing”. Also, the individual “must be able to comprehend and appreciate the claims to which he ought to give effect”. This last part means the individual must appreciate who might contest the Will and the nature of such a challenge. In addition, even though the person making the Will may have a mental illness this “does not prevent his possessing the faculties mentioned above” and “will not render the will liable to be overthrown on the grounds of the testator’s incapacity”.

The precedent set in this case, even though it is an English decision, has been followed in many Scottish decisions when a Will has been challenged on the basis of lack of capacity.

Statutory tests for capacity to make a Will

Section 1(6) of the Adults with Incapacity (Scotland) Act 2000 a clear description capacity. It does so by describing someone as “incapable” as someone who is not capable of:

  • Acting; or
  • Making decisions; or
  • Communicating decisions; or
  • Understanding decisions; or
  • Retaining memory of decisions.

A physical disability preventing an individual from communicating will not render that person incapable if the disability can be “made god by human or mechanical aid”.

What is the Scottish Courts’ view of capacity to make a Will?

The overwhelming view of the Scottish courts is that there must be strong evidence of incapacity before it will overturn any Will or other testamentary writing. A disagreement amongst family members about what a Will is not safe ground on which to raise a challenge in the courts.

If you wish to discuss making or reviewing your Will or have issues with a Will of a relation and would like advice, please call us on 0141 647 9851 or click here to email us.