Mental capacity

I have been instructed with regard to a Will and a Deed of Variation. I met with the client on three occasions. On the first occasion she was clear that she wished to pass her estate to her three children with the share for one of the children to be held on discretionary trust as he has a substance abuse problem. On the second occasion, she stated that she did not remember me, but, with prompting, was able to recall our previous discussion. On this occasion, she said that her son did not have a substance abuse problem and that he should receive his share outright. On the final occasion, when we met to sign the documents, she stated that she did not recall her other son telling her that we would be meeting and that she would just ‘go along with whatever you want’.

I was concerned, and I have advised that I would like to obtain a medical report. She flatly refuses to allow this and states that she has a friend who can confirm that she has capacity.

I wondered what other members would recommend/suggest as a way forward.

Angela Galvin
Bashforth-Young Solicitor

This lady’s capacity is clearly an issue. I would suggest writing to her to say that you will take no further steps in the matter unless she agrees to a professional assessment – it might be helpful to make reference to the Code and IB 1.6 and 1.7.

I think that if you discharge yourself from acting in this way you will have to forego costs for your work so far.

Tim Gibbons

Angela, this is a tricky problem and in my view there is no straightforward answer. I am sure you are aware of the Golden Rule. ACTAPS in conjunction with the Law Society’s Probate Section has prepared a checklist in relation to issues involving testamentary capacity. Often the time when capacity is assessed is vitally important. Two fairly recent cases (Ramsey v Ramsey [2015] All E R (D) 32 (SEP) and Simon and Byford [2013] EWHC 1490 (Ch) indicate that testamentary capacity need not be perfect or that it is absolutely necessary for the T to remember the terms of a previous Will or reasons for e.g. preferring one beneficiary over another. One complicating factor is that the arrangement envisaged may call into question whether the client has sufficient knowledge and approval of what is being proposed. The area is fast moving developing and you need to be very cautious. The friend may be of assistance in providing evidence the client had capacity should the Will be subsequently challenged. Also consider the facts in the case of Hawes v Burgess [2013] EWCA Civ 74. Hope this helps you determine the best course.

Tony Pearce
GA Solicitors

I have similar concerns over a client but in my case, although she has given me permission to contact her GP, he and the partners in the practice are unwilling to provide an opinion. Can anyone advise as to how to proceed?

Gail Weston


There is recent concerning case law in New Zealand around
capacity. Lack of evidence as to “why” a person wished to change
a will, even when it was clear that this was definitely their
wish, has provided grounds for a successful challenge.

  If your client can't engage her GP, you might want to consider a

video interview with her that could be used as evidence of her
capacity. My recommendation is that you do cover off the reasons
that she wishes to change her will as part of this interview.

Lee Harris

Foley Hughes, Lawyers, New Zealand

I suspect I am “behind the curve” so not sure if this is helpful to Gail
with her current issue, but some 15 to 25 years ago it was fairly usual for
GPs to refuse requests for a mental assessment in line with the “Golden
Rule” - often as they were not used to dealing with them. The follow-up
advice [which I think came from a joint BMA/Law Society booklet not
presently to hand] was that the GP should instead nominate a suitable local
specialist in the appropriate field - after all, you cannot be expected to
diagnose whether your concerns about your client may be due to senile
degeneration, an UTI, psychiatric disorder, substance abuse etc …

However, the specialist would be likely to charge a fee for his/her advice

  • I can only recall a couple of clients willing to give consent AND pay the
    specialist up-front, although obviously presented as part of the total
    costs required to make the will as strong as possible.

Kevin Mullen

Thank you Kevin. A GP’s opinion hasn’t been a problem in this locality until fairly recently and its certainly frustrating, not to mention the risk of delay in obtaining a specialist’s opinion for a 93 year old client.

Gail Weston