1. Skip to Content
  2. Skip to Navigation
COVID 19 -
Toggle Menu


More news

Decision making and mental capacity – knowing your own mind

02 May 2018

In life, some decisions are more important than others. The level of mental capacity required by a person to make a decision also reflects this and varies depending on the decision in question.

A recent case heard in the Court of Protection focused on this when asked to looked at whether a man in his eighties (‘P’) had the mental capacity required to marry his partner with whom he had been co-habiting for twenty years.

P had three daughters from a previous marriage and had lived with his current partner for twenty years. Prior to his diagnosis of Alzheimer’s Disease, P made a Will leaving some provision for his partner, but bequeathed the majority of his substantial personal wealth to his three daughters equally.

When P declared his intention to marry his partner, his daughters sought to stop this on the basis that their father did not know his own mind due to his condition.

For his daughters, the marriage had wider implications for them than just having a new step-mother, as it would result in the revocation of P’s Will. If P was deemed to have insufficient mental capacity to enter into a new Will after his marriage, then on his death the law would dictate to whom his estate would pass. This is set out in the Intestacy Rules, under which P’s wife would have received a far greater share of his estate at the expense of his daughters.

In this case, the Court ruled that P did have the mental capacity to decide to marry his partner of twenty years, however, the medical reports seemed to suggest that he would not have sufficient capacity to enter into a new Will.

It is a rather curious thing to think that someone could have the mental capacity required to decide whether or not to marry, but lack the mental capacity required to make a Will.

However, this is partly due to the importance of the decision in question and partly due to the tests set out in law for deciding if someone has capacity.

In this case, the Court had to look at the rules in the Mental Capacity Act 2005 to decide whether P could marry his long term partner. This is arguably a lower test than the very high test for capacity to enter into a Will, as set out in a case from 1870, known as Banks V Goodfellow.

Richard Marshall

Since the introduction of the test in the Mental Capacity Act, there have been queries as to whether this more modern interpretation of the law should replace the 1870 test. However, despite the age of the case in which the test was established, the test in Banks V Goodfellow was confirmed to be the test to apply to decide testamentary capacity in the recent case of James V James (decided in September 2017).

There can therefore be situations where someone has the mental capacity required to make a gift to someone during their lifetime, but would be unable to do the same under the terms of their Will due to a lack of capacity.

This is not only a very complicated area of law (not to mention of medical assessment and examination too), but due to the nature of the issue of mental capacity it is also a very personal and sensitive matter to raise and discuss. However, it is a crucial matter to consider and must be thoroughly explored with people when considering making lifetime gifts and altering their Will.

We have seen a growing trend in Wills being challenged by family members on the grounds of mental capacity following the death of a loved one, usually because the Will treats the family unequally or excludes some family members completely.

If you are considering changing your Will or making lifetime gifts and are concerned that someone may question your mental capacity in relation to such decisions, it is imperative to obtain legal advice and, in appropriate circumstances, obtain a medical report in order to confirm mental capacity.

At Hay & Kilner, our team of specialist legal advisers have extensive experience in dealing with questions of mental capacity in relation to making Wills and lifetime gifts and would be happy to discuss any queries and provide expert advice to you in relation to these matters.

For more information on any of the above or, how we can help your business, please contact Richard Marshall or Alice Clewes, or call 0191 232 8345.