FREE CHAPTER from ‘A Practical Guide to the Law of Statutory Wills’ by Alex Troup

CHAPTER ONE – IS P AN ADULT WHO LACKS TESTAMENTARY CAPACITY?

There are two fundamental requirements which must be satisfied before the Court of Protection can authorise a statutory will for P. The first is that P must be an adult. The second is that P must lack testamentary capacity.

P must be an adult

P must be an adult aged 18 or over.¹ The Court of Protection cannot authorise a statutory will for a child. This limitation is not surprising, because there is a general prohibition on anybody under the age of 18 making a will, even if they have no cognitive impairment.² There is one reported case where the Court of Protection was prepared to authorise the creation of a trust (as opposed to a statutory will) in order to prevent the assets of P, who was under 18, passing on intestacy to his parents, but the facts of that case were exceptional and it should not be assumed that the Court would proceed in this way in every case where P is a child.³

P must lack testamentary capacity

If P has testamentary capacity, then the Court of Protection will have no power to authorise a statutory will. Instead in that scenario it will be up to P himself to decide whether or not to make a will and, if so, in what terms. It is only if P lacks testamentary capacity that the Court of Protection will have power to authorise a statutory will.

It is up to the person applying for the statutory will to produce suitable evidence to prove that P lacks testamentary capacity. That evidence usually takes the form of a capacity assessment carried out by an appropriately qualified medical practitioner or other professional which is recorded on Form COP3.⁴ In many cases that capacity assessment is not disputed and the Court of Protection accepts it at face value. But there are cases where the evidence is disputed, typically because it is alleged that the assessor has ignored one of the principles set out in s.1 of the MCA 2004, has applied the wrong legal test, or has carried out the assessment incorrectly.

Who can assess capacity?

It is not only doctors who can assess P’s testamentary capacity. Any practitioner who has appropriate expertise so as to allow them to apply the legal test may carry out an assessment. Suitable candidates might include an approved mental health professional, a social worker⁵, a psychologist, a nurse, a speech therapist or an occupational therapist.⁶

How to instruct the assessor

The instructions to the doctor or other professional person carrying out the assessment should generally take the form of a letter which addresses the following issues:

1. P’s family background and personal circumstances.

2. P’s financial position.

3. Any orders which have previously been made by the Court of Protection in relation to P, including in particular whether the court has made an order appointing a deputy to manage P’s property and affairs.

4. The terms of any previous wills or codicils made by P.

5. The relevant principles set out in section 1 of the MCA 2005, as discussed below.

6. The legal test for testamentary capacity as set out in sections 2 and 3 of the MCA 2005 and the relevant information set out in Banks v. Goodfellow (1870) LR 5 QB 549, as discussed below.

7. The assessor should be told that if they are unclear about any aspect of their instructions then they should ask for clarification.

How the assessor should carry out the assessment

STEP 1 – Consider the relevant principles in section 1 of the
MCA 2005

The first step in carrying out any assessment of P’s testamentary capacity is for the assessor to consider the relevant principles set out in section 1 of the MCA 2005. Section 1 sets out five key principles but only three of them are relevant to capacity assessments. The three relevant principles are as follows:

“1. The Principles

1. The following principles apply for the purposes of this Act.

2. A person must be assumed to have capacity unless it is established that he lacks capacity.

3. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

4. A person is not to be treated as unable to make a decision merely because he makes an unwise decision…”

The first principle set out in section 1(2) contains the so-called presumption of capacity. The effect of this presumption is that the Court of Protection will proceed on the assumption that P has testamentary capacity unless the person applying for the statutory will proves otherwise. In a recent case this presumption was described as the paramount principle in the MCA 2005.⁷ The existence of this presumption is why the onus lies on the applicant to produce sufficient evidence to persuade the Court that P lacks testamentary capacity. The civil standard of proof applies, and so the applicant must satisfy the court on the balance of probabilities – or in other words, that it is more likely than not – that P lacks testamentary capacity.⁸

The second principle set out in section 1(3) contemplates that P may need support in order to make a will. The fact that P needs such support does not mean that he lacks testamentary capacity. Quite the reverse: the effect of section 1(3) is that if P is able to satisfy the test in sections 2 and 3 of the MCA 2005 with suitable support then he will have testamentary capacity. In such a scenario P should be given the appropriate support so that he can make a will himself. Anyone applying for a statutory will must therefore prove that all practicable steps to help P make a will have been taken without success before the Court will be prepared to decide that P lacks capacity.

Chapter 3 of the Code of Practice provides practical guidance on how to support people to make decisions for themselves. Anybody carrying out a capacity assessment should refer to the guidance. The guidance includes suggestions about how to provide all the relevant information to P, how to communicate with P in an appropriate way (such as visual aids or non-verbal communication), how to make P feel at ease (such as by conducting the capacity test in a familiar location or at a particular time of day) and how to support P to make the decision (such as by asking a third party to help or support P to make choices or express a view).

Example Neil has a diagnosis of secondary progressive multiple sclerosis which has progressed to the point of extreme physical debilitation. A solicitor attends on Neil who, with the assistance of a colleague and a doctor, takes instructions by putting questions to Neil. Neil answers yes or no by either nodding or shaking his head. He gives more detailed answers via a spelling board and blinking. The fact that Neil requires such support does not mean that he lacks testamentary capacity.9

There can be a fine line between a person supporting P to make a will and that person exercising undue influence over P in order to procure a will in his or her favour.¹⁰ If the boundary is crossed then the will in question will be invalid.¹¹ If any person carrying out a mental capacity assessment considers that P may be subject to undue influence then that person should seek legal advice before proceeding any further.

The third principle set out in section 1(4) is that P should not be treated as lacking capacity merely because he makes an unwise decision.¹² This has particular resonance in relation to wills, since the Courts have repeatedly emphasised that a person is free to make a will which is unfair or spiteful. This point was emphasised by the Court of Appeal in Gill v. RSPCA [2011] Ch 380 where Lord Neuberger stated:

“Subject to statutes such as the Inheritance (Provision for Family and Dependants) Act 1975, the law in this country permits people to leave their assets as they see fit, and experience of human nature generally, and of wills in particular, demonstrates that peoples’ wishes can be unexpected, inexplicable, unfair, and even improper. As I have mentioned, a court should be very slow to find that a will does not represent the genuine wishes of the testatrix simply because its terms are surprising, inconsistent with what she said during her lifetime, unfair, or even vindictive or perverse.”

Having said this, if P proposes to make a will in terms which are surprising, then that is a material factor which any person assessing P’s testamentary capacity may legitimately take into account.¹³

STEP 2 – The assessor must apply the correct legal test

Having considered the relevant principles discussed above, the next stage is for the person carrying out the assessment to apply to correct legal test for testamentary capacity. The legal test for determining whether P has testamentary capacity is set out in sections 2 and 3 of the MCA 2005.¹⁴ Insofar as they are relevant, those sections provide as follows:

“2. People who lack capacity

1. For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

2. It does not matter whether impairment or disturbance is permanent or temporary.

3. A lack of capacity cannot be established merely by reference to –

1. a person’s age or appearance, or

2. a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

4. In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities…”

3. Inability to make decisions

1. For the purposes of section 2, a person is unable to make a decision for himself if he is unable –

1. To understand the information relevant to the decision,

2. To retain that information,

3. To use or weigh that information as part of the process of making the decision, or

4. To communicate his decision (whether by talking, using sign language or any other means).

2. A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

3. The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

4. The information relevant to a decision includes information about the reasonably foreseeable consequences of –

1. deciding one way or another, or

2. failing to make the decision.”

It is clear from the opening words of section 2(1) that the test is whether P has capacity to make a decision in relation to a particular matter – which in the context of this book means the decision to make a will – and at a particular time. In other words, the test is decision-specific and time-specific. It follows that it is quite possible for P to have capacity to make a will but nevertheless to lack capacity to make decisions in relation to other matters. Likewise, it is possible that P may have testamentary capacity on one day but lack capacity on the next day – or indeed that P may have testamentary capacity at one particular time of day but lack testamentary capacity later that same day.

These possibilities are well illustrated by the case of A, B and C v. X and Z [2013] COPLR 1, where it was held that whilst X lacked capacity to manage his own affairs and to conduct litigation, he nevertheless had a qualified capacity to make a will. The Judge stated at para 36:

“In the event, I have concluded that I cannot make a general declaration that X lacks testamentary capacity, but that needs to be strongly qualified. There will undoubtedly be times when he does lack testamentary capacity. There will be many times when he does not do so. The times when he does lack such capacity are likely to become more frequent. It follow that, in my judgment, any will now made by X, if unaccompanied by contemporary medical evidence asserting capacity, may be seriously open to challenge…”

The test set out in section 2(1) of the MCA 2005 involves three separate stages which anyone carrying out a capacity assessment needs to consider in turn and in the following order.¹⁵

The first stage is to determine whether P is unable to make a decision for himself in relation to the matter. In the context of this book, the matter in question is the making of a will. This is known as the functional test. It is expanded upon by section 3(1) of the MCA 2005 which explains that a person will be unable to make a decision for himself if he is unable to understand “the information relevant to the decision”, to retain that information, to use or weigh that information as part of the process of making the decision and to communicate his decision.

In the context of statutory wills, the “information relevant to the decision” is that set out in the old case of Banks v. Goodfellow (1870) LR 5 QB 549 where it was held that:

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.” (emphasis supplied)

This is supplemented by section 3(4) of the MCA 2005, which provides that “the information relevant to the decision” also includes the information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision.

The upshot of all of this is that the information which P must be able to understand, to retain and to use or weigh as part of the process of making a decision is as follows:

1. the nature of a will and its effects;

2. the extent of his property;

3. the claims to which he ought to give effect;

4. the reasonably foreseeable consequences of making, or not making, a will.¹⁶

The courts have repeatedly emphasised that the test for capacity is not to be equated with a memory test.¹⁷ So the mere fact that P cannot remember the terms of a previous will¹⁸, or the value of his property¹⁹, does not of itself mean that he lacks testamentary capacity, so long as he is capable of accessing the information.

The information set out above should be explained to P in a way that is appropriate to his circumstances, as required by section 3(2), before the capacity assessment is then carried out.²⁰ Chapter 3 of the Code of Conduct provides practical guidance on how this should be done.

The second stage is to determine whether there is an impairment of, or a disturbance in the functioning of, P’s mind or brain. This is a medical issue, and is known as the diagnostic test. There is no limit placed on the range of impairments, or disturbances in the functioning of the brain, which will satisfy this requirement, and section 2(2) specifically provides that it does not matter whether the impairment or disturbance is temporary or permanent.

The third stage is to establish that P’s inability to make a will is caused by the impairment, or a disturbance in the functioning of, his mind or brain. In other words, it is necessary to establish a causal link between Step 1 and Step 2. If P is unable to make his will due to a reason other than an impairment or disturbance in the function of his mind or brain, then he will not lack capacity.

It follows that the test for determining whether P has testamentary capacity to make a will is not just a medical issue. The diagnostic test (step 2) is only one element of the test, and any assessment must also consider the functional test and the causal test. That is why it is not just doctors who can carry out a capacity assessment.

STEP 3 – How to deal with problem areas

There are three particular problem areas which commonly arise in practice.

Fluctuating capacity – It is not uncommon to encounter cases where P’s testamentary fluctuates. For instance, it is notorious that a person with a diagnosis of dementia may have good days and bad days. His capacity may even fluctuate over the course of a single day, so that he may have capacity in the morning but not in the afternoon. In such cases the assessment should be carried out on a date and at a time when P’s capacity is likely to be at its highest, so as to comply with fundamental principle set out in section 1(3) of the MCA 2005, as discussed above.

Likewise, it is critical in such cases that the capacity assessment is based upon a contemporaneous meeting with P rather than upon historic notes, and that a written record of the assessment is kept so that it can be produced if the assessment is challenged at any stage in the future.²¹

This is in keeping with the so-called Golden Rule, which states that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings.²² This is a rule of good practice for solicitors rather than a touchstone of the validity of the will, and there may be cases where it is not practical to follow it.²³ If it is followed, however, then it should minimise the risk of disputes arising in future as to the validity of the will in question.

Refusal by P to undergo a capacity assessment – There are cases where P simply refuses to undergo a capacity assessment and refuses to consent to disclosure of his or her medical records. It is legitimate to seek to persuade P to undergo an assessment, for example by carefully explaining the purpose of the assessment to P or by giving P a choice of who will carry out the assessment. If there are reasonable grounds to believe that P’s refusal is due to the undue influence of a third party, it may be possible to invoke the inherent jurisdiction of the High Court.²⁴ Ultimately, however, P cannot be compelled to do so against their will. The absence of a capacity assessment is not a bar to the court making a finding of lack of capacity, but in such cases the court will be cautious before concluding that the presumption of capacity in s.1(2) of the MCA 2005 has been rebutted.²⁵ The court may simply have to do the best it can on such other evidence as may be available. That evidence could include P’s own conduct if P attends court²⁶, any documents written by P, videos of P, and evidence from P’s family members and associates.

An applicant faced with this situation may issue an application for a statutory will but should file a witness statement explaining why he has not been able to obtain a capacity assessment, what attempts (if any) he has made to obtain a capacity assessment, and why he knows or believes that P lacks capacity to make a will.²⁷

Remote assessments – There are occasions when face-to-face capacity assessments are simply not possible. In such a scenario a capacity assessment may be carried out remotely over platforms such as Zoom, Teams, Facetime or Skype. Such remote capacity assessments have become common during the COVID-19 pandemic. There is no doubt that such remote assessments are lawful²⁸, although they require careful preparation and creativity to overcome the challenges which they present.

STEP 4 – Follow the guidance given by the Court of Protection

In the case of AMDC v. AG and CI ²⁹, the Court of Protection gave the following guidance to any expert providing a written report to the court on P’s capacity. It is suggested that this guidance should be followed (or at least carefully considered) by anyone carrying out a capacity assessment:

1. An expert report on capacity is not a clinical assessment but should seek to assist the court to determine certain identified issues. The expert should therefore pay close regard to (i) the terms of the Mental Capacity Act and Code of Practice, and (ii) the letter of instruction.

2. The letter of instruction should identify the decisions under consideration, the relevant information for each decision, the need to consider the diagnostic and functional elements of capacity, and the causal relationship between any impairment and the inability to decide. It will assist the court if the expert structures their report accordingly. If an expert witness is unsure what decisions they are being asked to consider, what the relevant information is in respect to those decisions, or any other matter relevant to the making of their report, they should ask for clarification.

3. It is important that the parties and the court can see from their reports that the expert has understood and applied the presumption of capacity and the other fundamental principles set out at section 1 of the MCA 2005.

 

4. In cases where the expert assesses capacity in relation to more than one decision, (i) broad-brush conclusions are unlikely to be as helpful as specific conclusions as to the capacity to make each decision; (ii) experts should ensure that their opinions in relation to each decision are consistent and coherent.

5. An expert report should not only state the expert’s opinions, but also explain the basis of each opinion. The court is unlikely to give weight to an opinion unless it knows on what evidence it was based, and what reasoning led to it being formed.

6. If an expert changes their opinion on capacity following re-assessment or otherwise, they ought to provide a full explanation of why their conclusion has changed.

7. The interview with P need not be fully transcribed in the body of the report (although it might be provided in an appendix), but if the expert relies on a particular exchange or something said by P during interview, then at least an account of what was said should be included.

8. If on assessment P does not engage with the expert, then the expert is not required mechanically to ask P about each and every piece of relevant information if to do so would be obviously futile or even aggravating. However, the report should record what attempts were made to assist P to engage and what alternative strategies were used. If an expert hits a “brick wall” with P then they might want to liaise with others to formulate alternative strategies to engage P. The expert might consider what further bespoke education or support can be given to P to promote P’s capacity or P’s engagement in the decisions which may have to be taken on their behalf. Failure to take steps to assist P to engage and to support her in her decision-making would be contrary to the fundamental principles of the Mental Capacity Act 2005 ss 1(3) and 3(2).

STEP 5 – What form should a capacity assessment take?

Many capacity assessments are carried out relatively informally and typically take the form of a letter or a short report.

Where the assessment is undertaken in support of a statutory will application to the Court of Protection it should be on Form COP3.³⁰ Practice Direction 9E states that in addition to the capacity assessment, the evidence in support of a statutory will application should include “an up to date report on P’s medical condition, life expectancy and likelihood of requiring increased expenditure in the foreseeable future”.³¹ It is therefore sensible to ask the person carrying out the capacity assessment to consider these matters in addition to P’s testamentary capacity, and to report on them either within the Form COP3 (perhaps using the space for general comments) or in a separate report which can be attached to the Form COP3. The assessor should also be asked to record any relevant wishes and feelings which P is able to express during the assessment, since such wishes and feelings are a relevant factor for the Court of Protection to take into account in determining whether it is in P’s best interests to authorise a statutory will and if so in what terms.³² The court set out guidelines as to how anyone seeking to ascertain P’s wishes and feelings should follow in the case of ADS v. DSM.³³

If the capacity assessment is being undertaken by an expert pursuant to a direction made by the Court of Protection, the expert’s report should comply with the requirements set out in Practice Direction 15A.³⁴

Disputes over capacity

Many capacity assessments are uncontroversial, but sometimes they are challenged, either by P himself or herself or by others, such as family members, friends or professionals. In such cases the challenger should as a first step raise the matter with the capacity assessor, and ask them to give reasons for their decision and to provide objective evidence to support it.³⁵ The challenger might wish to obtain their own capacity assessment.³⁶ If the dispute cannot be resolved by agreement, then ultimately it will be for the Court of Protection to determine P’s capacity, based upon all the evidence. The Court of Protection may give directions to assist it in determining P’s capacity in such circumstances, including directing a capacity assessment to be carried out by a single joint expert³⁷ or by a Court of Protection Visitor.³⁸

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