Mental Capacity And Wills: The Importance Of Detailed Assessments And Notes – Family and Matrimonial – Gibraltar – Mondaq News Alerts

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Although an individual has testamentary freedom, it is importantthat their mental capacity is correctly assessed when they arechoosing to disinherit an individual who could make a claim underthe Inheritance (Provisions for Family and Dependents) Act 1977. Inthe event that a testator's case may turn contentious aftertheir death, due to them disinheriting certain family members ordependents, legal practitioners should carry out the followingsteps:

Firstly, instructions should be received directly from thetestator and family members and potential beneficiaries should berequested to leave the room in any relevant meetings.

Secondly, legal practitioners should ensure that a testator hasthe mental capacity to make a Will. It is good practice tofollowing the test set out in Banks v Goodfellow(1870) LR 5 QB 549 and record in writing any relevant informationgathered in detail.

Finally, they should follow the "Golden Rule", anexpected professional standard which entails a medical practitionerconducting an appropriate examination of the testator at the timeof execution of the Will and the conclusions of such examinationrecorded in writing. The "Golden Rule" also advises thata medical practitioner act as a second witness to theWill.

All file notes, assessments and opinions should be kept with theoriginal Will. These documents could prove to be important as theburden of proof, when capacity is questioned, lies with the personstrying to prove the Will and not those contesting it.

It should be noted that following the Banks vGoodfellow test and the "Golden Rule" does notnecessarily guarantee that the testator had capacity. It doeshowever, make it very difficult to show otherwise.

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The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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Mental Capacity And Wills: The Importance Of Detailed Assessments And Notes - Family and Matrimonial - Gibraltar - Mondaq News Alerts