The scene

A consultant in elderly care medicine called the MDU advice line after being contacted by the solicitor acting on behalf of an in-patient. The patient had recently been diagnosed with a locally advanced lung tumour, and was now receiving terminal care in the ward. The patient had been given a prognosis of a matter of weeks.

The patient’s solicitor explained that before the patient was admitted to the ward she had been in the process of writing a new will, and had decided to leave her estate to a neighbour, who had been helping to care for her over the past few years. The solicitor explained that the patient needed to sign this new will, and that her signature would need to be witnessed, preferably by a doctor, who could also assess the patient had capacity at the time of signing, in case the will was challenged.

The consultant explained to the adviser that although the patient was taking some opioid-based medication for pain relief, she remained orientated in time and place and on assessment appeared to have capacity to understand what she would be signing. The consultant asked if it would be reasonable to witness the will for the patient.

MDU advice

The MDU adviser explained that assessing an individual’s capacity to make a will - their testamentary capacity - must be done with reference to a specific legal test. Even when a doctor was simply asked to witness a will, the presence of the doctor when the will was signed would lead to a presumption that the doctor had assessed the individual’s testamentary capacity.

The person making the will must understand the nature and effect of doing so, be capable of understanding the extent of their estate, and understand the claims of anyone who might reasonably expect to benefit from the will. They must also not have any disorder of the mind that might influence them to make bequests they would not otherwise have made. The doctor would need detailed instructions on the person’s estate from their solicitor to allow them to assess this thoroughly.

The adviser explained that if the will were to be challenged - for instance, by a member of family who had been left out of the will - the consultant could be called to explain what assessment they had performed, and detail their experience in assessing testamentary capacity. They could be required to give evidence in court, if the matter went to court.

The consultant acknowledged that whilst she was well versed in dealing with matters of mental capacity in so far as they relate to medical treatment that she had no previous experience in assessing testamentary capacity and had not been aware of the need for a specific test. She also had not received detailed written instruction from the patient’s solicitor to allow her to undertake such an assessment.

She agreed with the adviser that it might be best if she sought detailed written instructions from the solicitor on the extent of the estate, and who might have claims arising from it before agreeing to assess the patient and witness the will.

Testamentary capacity advice line dilemma

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