Of Sound Mind

From Oxford Textbook of Old Age psychiatry
Chapter on Will and Capacity: Harvey D Posner and Robin Jacoby



Worse than physical disablement is the dementia of not remembering ones children or who one has dined with the previous evening; by cruel testament he forbids his own flesh and blood to be his heirs. Juvenal Satire 10, C.AD 125 (Paraphrasing)



Testamentary capacity or being of sound disposing mind is the capacity to make a legally binding will. IT is a legal, and not a medical test.

In England and Wales, the execution of Wills (signing them as required in the presence of a witness) is governed by various Acts of Parliament, such as the Wills Acts (1837, 1861, 1963, and 1968) and in some instances the mental health act 1983.These are augmented by much case Law (see Vol 1 Chpt 4 of eight edition of Williams on Wills (Sherring et al, 2002).

In 1870 Banks vs. goodfellow; he left his estate (15 houses) to his neice (will made in 1863, admitted as a lunatic due to persecutory delusions of molestation by a man long dead and by evil spirits whom he believed to be visibly present nb these existed form 1841 to death in 1865). The Lord Chief Justice Cockburn (Paraphrasing):

Essential… the testator (or testatrix for females) shall understand the nature of the act and its effects; understand the extent of property he is disposing; no insane delusion shall influence his will such that had his mind been sound he would not have made the same decision.

Three elements

1) The testator must understand the nature of the act (content of the will) and its effects

2) The testator must be aware of the extent of the property being disposed of

3) The testator must know the nature and extent (doesn’t need to to know exact value) of those whom have a claim upon him of those whom he is both including and excluding in the Will.

In moderate Dementia e.g. MMSE of 15 (folstein et al, 1975) a will could still be made (but more severe dementia this is unlikely) as they may be unsure as to the exact date and location, fail seriel subtraction and fail to copy interlocking pentagons accurately but pass Banks vs. Goodfellows test. Conversely in Korsakovs syndrome has such impaired memory that he fails to retain or recall the information his son has died and that he has grandchildren who can make a claim on his bounty.


Hoff and others vs. Atherton – Lord Justice Peter Gibson in court of appeal on the case agreed patient had testamentary capacity despite moderate dementia.
http://www.thefreelibrary.com/Alzheimer's+sufferer's+pounds+1m+will+valid+-+judge.-a0125012768


Capacity has four components



1) Understand relevant information including nature and purpose of the information not just recall. Should be able to identify the choices available and paraphrase them.

2) Manipulate information rationally: shold understand benefits and risks of the choices. Focus on an internally coherent decision process rather than the actual outcome of the decision.

3) Appreciate the situation and the consequences in the context of their own emotions/position and family – assigning a value to the risks and benefits.

4) Communicating the choice – the ability to maintain consistent choice; if persons frequently change their choices they are unliekyl to be deemed competent.