Action for Brain Injury Week – fluctuating capacity

The Child Brain Injury Trust reports that every 90 seconds, someone in the UK is admitted to hospital with an acquired brain injury, and every 15 minutes, a child in the UK acquires a brain injury. While many will make a full recovery, for others, this may impact on their ability to make certain decisions as adults.

Capacity is a nuanced issue. An individual may lack capacity to do some things or make certain decisions at one point in time but be able to make that same decision at a later point in time. This is known as fluctuating capacity. Where a person has fluctuating capacity, they should be supported to make as many of their own decisions as possible (and if possible delay big decisions from a time when the individual lacks capacity to a time when they do).

In the context of big decisions – like making a will – it is important to have a firm grip on the specific requirements for the decision in question in order to ensure that there are no concerns as to the validity of those documents.

Tests for capacity are issue specific. The general test for capacity in respect of decisions covered by the Mental Capacity Act 2005 is that the individual must be able to:

1. Understand the information relevant to the decision to be made;
2. Retain that information;
3. Use or weigh that information as part of the decision-making process; and
4. Communicate their decision.

While the Law Commission has recently recommended that the same test should apply when assessing someone’s capacity to make a will, the current test set out in the case of Banks v Goodfellow, is whether the individual:

1. understands the nature of making a will;
2. the extent of the property which he is disposing;
3. the claims to which he ought to give effect; and
4. he is not affected by any disorder of the mind which perverts his sense of right or the exercise of his natural faculties in disposing of his property.

Additional caution should be exercised when assisting someone with a brain injury to make a will and it is advisable to arrange for a medical professional to assess the individual’s testamentary capacity. This is not a legal requirement but if the will were to be subsequently challenged it would serve as valuable evidence that the will was made at a time when the individual had the capacity to make the decisions in their will.

Given the sometimes unpredictable nature of fluctuating capacity, and the need to provide the best possible support for the individual making the will, other measures to support them, and to avoid later disputes, might include:  

• Arranging meetings in person at a time that suits the individual make the will e.g. in the morning if they are more alert when they first wake up, and documenting the what they say;
• Being alive to the possibility of fluctuating capacity and rearranging meetings if they are having a bad day;
• Ensuring that their will is prepared and executed promptly once instructions have been provided;
• Keeping the will simple where possible to make it easier to understand;
• Getting a medical assessment as set out above;
• Potentially recording the meeting where the final will is approved and executed by the individual making the will, and if not retain a very detailed attendance note.

The most common grounds for contesting a will are a lack of testamentary capacity and undue influence (where someone coerced the individual making the will which often comes hand in hand with the question of capacity and vulnerability more generally). It is therefore incredibly important to ensure that as many protections as possible are in place to best protect against a challenge after death.

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about the author

Katherine is a Partner in the Dispute Resolution Team who specialises in Trust and Estate Disputes. 

Katherine’s experience in the field of Trusts and Inheritance Disputes covers challenging the validity of wills (including claims for lack of testamentary capacity, want of knowledge and approval, fraud, forgery and undue influence), claims under the Inheritance (Provision for Family and Dependants) Act 1975, removal of executors and trustees, breach of trust claims, fraud cases involving trust structures and professional negligence claims relating to wills and trusts.