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6 June 2018
You may be asked to comment on a patient's testamentary capacity where:
In some circumstances, a doctor may face a civil claim or a complaint to the GMC about having witnessed a will or commented on testamentary capacity – so it's important to understand the role you play, should you undertake such an assessment.
Testator/testatrix – the person who makes a will.
Codicil – a subsequent addition or amendment to the original will.
Testamentary capacity is the capacity, or understanding, required by the testator/testatrix to make a will.
Mental capacity is decision-specific and the test of testamentary capacity is set out in the case of Banks v Goodfellow.
In order to have testamentary capacity the testator must be capable of understanding:
Solicitors will usually follow a golden rule – that the making of a will by an elderly person, or one who has suffered a serious illness, ought to be witnessed or approved by a medical practitioner who 'satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding.'1
If you witness a will, you will be inferred to have made an assessment of the testamentary capacity of the testator and could be challenged in writing or in the witness box, and asked to explain your experience and expertise in assessing testamentary capacity, as well as explaining how you came to your opinion.
If you are considering witnessing a will or writing a letter about capacity to make a will, at the request of a patient or anyone else on a patient's behalf, take time to consider carefully whether it is appropriate for you to agree to take on the role. If you do decide to go ahead, take time to make a thorough assessment and keep careful notes.
Use the following questions as a reference:
Work within the limits of your competence and take reasonable steps to ensure anything you write or sign is verifiable.
If you witness a will or write a letter expressing an opinion that a patient is capable of signing a will, it will be inferred that you have made an assessment of testamentary capacity.
Make sure you have a good understanding of the legal principles that relate to testamentary capacity. These should be set out for you by the patient's, or their executor's, solicitor.
Ideally, a letter of instruction from the patient's solicitor will include information about previous wills in order for you to be able to discuss with the patient their reasons for including or excluding potential beneficiaries. If it has not been included, then it is reasonable to ask the solicitor for this prior to you assessing the patient.
If you do decide to go ahead with an assessment of testamentary capacity, you should be aware of the legal test to be applied and check that the person understands each of the points above from Banks v Goodfellow.
Set aside adequate time to assess the person thoroughly. You may find it uncomfortable to ask about the extent of the estate, potential beneficiaries, and about the patient's choices regarding who to leave out of a will. However, embarrassment is 'best not deferred to the witness box, after a patient's death'.
Keep detailed, clear and contemporaneous notes when making an assessment of testamentary capacity, and record your opinion. Should your assessment be challenged at a later date, for example if a dispute arises following a patient's death, your notes may be of great significance.
Keep a note of who else was present during the assessment.
The BMA and the Law Society have published guidance for doctors and lawyers on assessment of mental capacity, which includes helpful points clarifying the approach to assessing testamentary capacity.
For specific advice relevant to your individual circumstances, contact the MDU.
This guidance was correct at publication 06/06/2018. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.
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