On 30th of June 2021, I was honoured to take part in a discussion on the assessment of testamentary capacity, as one of four elected panel members. The event was held by STEP Worldwide and hosted by Claire van Overdijk TEP, Chair of the STEP Mental Capacity Special Interest Group. The limited availability of guidance or training in the area of how to assess testamentary capacity and the absence of any gold standard for practice has been recognised internationally as problematic for legal practitioners who are faced routinely with the task of judging the testamentary capacity, or TC, of their clients.


The key issues when undertaking a capacity assessment

The purpose of the webinar was two-fold. Firstly, to provide a platform for a multidisciplinary panel of experts to discuss some of the key issues when undertaking a capacity assessment and how best to address them.

The key issues are recognising the difference between the ability to express a choice and retaining testamentary capacity; the inherent difficulties assessing higher level – often termed ‘executive’ aspects of decision making ability in the face of a client’s sound social façade, the failure to apply open-ended questions in the evaluation of TC and the difficulty detecting cognitive impairments in the early stages of neurodegenerative illnesses.

We heard from co-panelists Alexander Learmonth QC TEP, New Square Chambers, and Stephen Lawson TEP, FDR Law, both highly experienced barristers who routinely represent clients in matters where a deceased estate is being challenged on grounds of the testator having lacked capacity at the time(s) of will-making.

Professor Robin Jacoby, former head of the Psychiatry Dept of Oxford University, provided invaluable insights into how medical conditions impacting on the brain may affect testamentary capacity, using a number of high-profile matters of interest to illustrate this.

My contribution was to outline how many of the presenting signs of damage to the brain (arising from a range of different medical illnesses impacting mental function) interact with each of the four limbs of the Banks v Goodfellow criteria that form the legal test for Testamentary Capacity.

The webinar panel of speakers covered a range of key issues that need to be considered  when making a capacity assessment and how best to address them as a matter of regular practice.


An online course in testamentary capacity assessment

The second purpose of the webinar was to provide a platform for discussion around the potential development and implementation of an online testamentary capacity assessment course which would include a standardised questionnaire. The webinar was run with a view to ascertaining the appetite and enthusiasm of STEP members for the development and implementation of an online testamentary capacity assessment course.

It was proposed that the online course would be a valuable educational tool for anyone required to interact with capacity assessments. The course is proposed to comprise a series of interlinked sessions provided by relevant experts including solicitors, counsel and medics providing detail on the capacity issues, the law and practice in a modular format. The course may be adapted for implementation across the common-law jurisdictions, and completion may provide CPD/accreditation.

1110 delegates registered for the event worldwide. A resounding 97% of delegates indicated that they were in favour of the course and would attend a course of this nature, so it’s on with the job of authoring and producing the online course in testamentary capacity!

If you would like to be kept up to date with progress, please contact us to register your interest.