We have a client who suffers from severe schizophrenia and has a Deputy to manage his financial affairs. We were approached by the Deputy in order to prepare a Will for the client. We have since met with the client and it is clear that he understands the purpose of a Will and its effect and he also has regard to those closest to him (in terms of who he has regular contact with etc.) Indeed his wishes are clear and rational. The issue that arises is that the client does not wish to know how much money he has (this consists of inheritance from his late fatherâs estate) and is adamant about this.
A doctor has assessed the clientâs capacity and the medical opinion is that the client lacks capacity to prepare a Will âwithout appropriate support or measuresâ. (Agreed that this is not the most helpful of assessments.) That said, from a legal point of view as we are not in a position to inform the client of the size of his estate, can it be said that he has capacity, or more correctly does he fail the Banks v Goodfellow test. The point being that he cannot be said to âUnderstand the extent of the property of which they are disposingâ without knowing how much they have.
A finding of lack of capacity will mean a statutory Will application is to be made and whereas this should be relatively straightforward, it does have its own cost and time implications. Thoughts are welcome.
On the basis that the Court of Protection will require a COP3, confirming lack of capacity to make a will, before it will consider a statutory will application, it might be worth seeing if a suitably qualified person will issue one. Obviously this will entail a matter specific assessment of capacity. If they are willing to sign-off on the COP3, then this will also save time in getting the matter before the court.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Playing Devilâs advocate and without commenting on the legal specifics already advised - would it be worth obtaining a second medical opinion? Also I wonder how many ordinary people actually âunderstand the extent of the property of which they are disposingâ when they make a Will - usually they are more concerned with to whom they are disposing rather than of what and the more specific they are about particular property then the more potential there is for problems later on, if circumstances change and that particular property is no longer owned at death.
Further to my recent response to Haroonâs question, I think itâs worth adding that I understand the Banks v. Goodfellow test, being a retrospective assessment, applies mainly where a will is challenged after death.
Before the will is executed, it is the MCA 2005 that applies. Albeit the MCA assessment might include elements of Banks v. Goodfellow, I suspect that a lack of knowledge of the value and extent of oneâs estate is not necessarily a block under the MCA, assessment. Hence my suggestion of identifying if a professional would be willing to put their name (and reputation) behind the issuing of a COP3.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Thanks Paul. This is what I usually advise my clients! For whatever reason, a mental block took over me⌠sadly I take it as a first sign of old age, (and others will probably be quick to advise that this is not the first sign!)
The MCA assessment may well say he has capacity, and is able to understand what assets he has, if he is told, and to understand the implications of it when deciding what goes into his Will. However, if he is not told what his assets are, and refuses to apply his mind to it, the Will could be challenged later on this ground. So, if you get a medical opinion that he has capacity under the MCA, then if he insists on making the Will absent any knowledge of his assets, you will need to warn him that the Will could be challenged.
As held in Simon v Byford [2014] EWCA Civ and most recently in Goss-Custard v Templeman, testamentary capacity requires the ability to understand the matters relevant to the decision of what to put in the will (as set out in Banks v Goodfellow), if the testator chose to find it out, not actual understanding. So it doesnât matter if your client does not in fact know what he has to give away (and doesnât want to be told) provided he could understand what he was told.
In practical terms, of course, it is hard for you to know for sure whether he could understand it if told without telling him, but ultimately you have to comply with your instructions if you think he has capacity, and not if not.
Vegetarian Society v Scott shows that schizophrenia does not necessarily deprive someone of capacity. A person with that condition can often satisfy the first three limbs of BvG. The question is whether the condition has âperverted their affectionsâ towards people who might otherwise have been beneficiaries - you would want to explore that thoroughly with the client.
(The medical assessment you have is particularly unhelpful, as it suggests the client does not lack capacity for the purposes of the MCA, in that he could make a will for himself with assistance and support, so the COP ought to refuse an application; but it doesnât give you much comfort that a will you made for him would be valid.)
Good luck!
Alexander Learmonth
New Square Chambers