Paula looks at the impact of an ageing population on the will writing industry.
With the appointment of a new chief executive of NHS England, Mr Simon Stevens takes on the role with what he describes as ‘the burden of saving the NHS from an ageing population’, with the rising cost of health requiring the ‘biggest effort’ in the organisation’s history. This highlights the strain that is placed on the NHS by the elderly population. Recent statistics predict that the number of people aged over 80 in Britain is forecast to more than double to 6.2 million within the next 25 years, and according to the Office for National Statistics, the number aged over 90 will be more than triple, while the number of centenarians will rise almost nine fold from 13,000 to 111,000.
For will writers the most important part of their job is their ability to assess a client’s capacity and be sure that they meet with the requirements of creating a valid will. However, it is not surprising that informing a client that there may be concerns regarding their mental facilities is never easy. The burden of determining whether a client has testamentary capacity to make a will is crucial in the preparation of every will.
However, it is is often more important when you are dealing with an aged or seriously ill testator, if only because, statistically, elderly diseases like Alzheimer’s and dementia are more likely to affect the elderly and because such wills are more at risk of being challenged by those disinherited under them.
Banks v Goodfellow test
For more than 130 years the test for mental capacity to make a will inevitably starts with the citation of the judgement in the case Banks v Goodfellow [1869 -70] LR 5 QB 549. The application of the test provides:
- A testator must understand the nature of the will and its effect. This does not require a full understanding of the legal terminology of the will, however a broad understanding of the wills effect is essential.
- A testator must have some idea of the extent of the property of which they are disposing This need not be an inventory which breaks down into an intricate detailed list, but the testator must appreciate the extent of their wealth.
- A testator must be aware of the persons for whom he would usually be expected to provide (even if he chooses not to) and must be free from any delusion of the mind that would cause him reason not to benefit those people.
This would suggest there is an onus upon the will writer to determine the answer to these questions, and to comply with the criteria to establish testamentary capacity. It is prudent when taking instructions from a client that observations in respect of capacity are made from the outset and maintained throughout the completion of a will.
The golden rule
The law provides further guidance that should also be considered where a testator is deemed to be ‘aged’ or is seriously ill. The case of Re Simpson  121 SJ 224 provides that there is one golden rule that is to be observed, however straightforward the will and however tactless the suggestion, ‘that the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings.’
That being said, this apparent golden rule has come under some criticism by practitioners and the general public alike for discriminating against the elderly and for placing both the practitioner and client in a difficult situation.
In all cases, however, and irrespective of age, it is necessary to provide clients with proper advice and to assess whether it is necessary to obtain medical evidence. Further, a client should be advised that, in the event of a subsequent challenge to their will on the basis of lack of capacity, a lack of contemporaneous medical opinion may make the challenge more likely to succeed.
If it is assessed that medical evidence is appropriate in the circumstances then the initial point of contact would be someone who knows the client, most often their GP. However, the suggestion that a GP assessment will suffice has been met with some criticism. It has been suggested that, in order for the golden rule to have substance, a specialist should be approached. On the other hand, the associated cost, delay and apprehension that can be felt by a client in seeking further specialist advice can potentially cause an adverse reaction.
However, the witnessing of a will by a medical practitioner, even if they are not a specialist, will usually hold more weight than that of a non-medically trained independent witness. This is even more prudent where an illness such as dementia or Alzheimer’s can be masked by a social facade of capacity.
Mental Capacity Act 2005
Consideration should also be made of the Mental Capacity Act 2005 and its impact on wills made after 1 October 2007. In the recent case of Fischer v Diffley  EWHC 4567 (Ch) the question of testamentary capacity in respect of a will made after 1 October 2007 arose. It was confirmed that the principles of the Mental Capacity Act 2005 ‘go further and are applicable in situations such as the present and must be looked at alongside the classic test contained within the common law as set out in the case of Banks v. Goodfellow.’
The provisions of sections 1 to 3 of the Act provide supplementary support to the Banks v Goodfellow test and therefore should also be considered when assessment of capacity is required.
Where there is any indication that a testator’s capacity may be questioned, it is good practice to invoke the golden rule. Every opportunity to protect a will from challenge should be made, and therefore those who practice within the guidelines of the golden rule and make observations as per the Banks v Goodfellow test, provide a greater level of protection against any future possible challenge to a will.