In Margaret Atwood’s best selling novel ‘The Handmaid’s Tale’ Atwood’s main character and heroine ‘Offred’ often repeats the phrase “Context is all”. This infamous statement is mentioned throughout the novel to remind the reader that no one decision is made in isolation, but that context can shape and effect an individual’s political beliefs, behaviours and attitudes. Similarly the recent case of Hughes v Pritchard [2022] was also a strong reminder to Private Client and Court of Protection practitioners, to not only consider the capacity of the individual leaving a will, but to also bear in mind the context and information available to a medical professional assessing that individual’s capacity.

Testing Capacity and Assessing Capacity

Context is an essential measuring tool when assessing capacity, versus witnessing an unwise decision. One of the aims of The Mental Capacity Act 2005 (MCA 2005) was to ‘consolidate the law relating to capacity and delegated substitute decision making’. As an individual’s needs and interests vary, the purpose of the Act is to provide different remedies to suit different situations. Both case law and the MCA 2005 have made it clear that Capacity is weighed specifically to the decision being made. As Sir Owen Dixon CJ expressed in Gibbons v Wright (1954). The mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected’.

In short, capacity must be assessed on a case by case basis. This implies applying a big picture perspective when assessing capacity, for example if the subject matter and value of a gift are trivial in relation to a donor’s other assets, a low degree of understanding will be sufficient. On the other hand, if the same gift or subject matter was the only asset of value in the estate, then the degree of understanding required may be higher.

Once it has been established what decision is being made for which capacity is required, the next step is to assess whether the person concerned is capable of making that decision.

An unwise decision vs capacity

The MCA is underpinned by 5 core principles; Principle 3 - ‘Unwise decisions’ states that an individual has the right to make decisions that others might regard as unwise or eccentric and you cannot treat a person as lacking capacity for this reason. Though the principle is quite clear, it can prove difficult to apply.

If we consider the case study of an elderly client who lives alone and has an estate worth around £5 million. This client chooses to send a portion of their monthly pension to a charity that is not registered and has no real evidence of what the money is actually used for. If this client happened to be a relative or even Grandparent, I’m sure many of us would hope that the ‘charity’ receiving these funds was registered and legitimate. Nevertheless due to the amount being quite trivial, very few of us would begin to doubt that person’s capacity.

To demonstrate how context can alter this perspective, let us consider a scenario where the weekly amount to the charity changes from a trivial sum to almost 70 percent of that elderly person’s income. Furthermore, when questioned about the increase, the relative says that they have grown more passionate about the cause and they have received evidence in pictures that the charity is legitimate. Though eyebrows may raise, at this point the reality is that one may be witnessing an unwise decision but it does not mean that the person concerned does not have capacity.

Doubts about capacity may arise for several reasons but they should not be confused with tests of capacity.’

The Test for capacity

  1. There is a medical condition; and
  2. As a consequence of that condition a person is unable to make that decision

It is important to note that considerable weight is given to the outcome of the above test as it can affect not just the individual being assessed, but those around them. The circumstances of the case of Hughes v Pritchard [2022] which determined the validity of a will were:

  • the testator was suffering from moderate dementia,
  • an amendment was made to the will due to the death of the testator’s son who had predeceased him; and
  • The widow and children of the son who had died challenged the change.

The core issue, in this case, was that the medical practitioner assessing the capacity of the testator before he amended the will did not have all the facts. What the medical practitioner thought was merely a ‘tidying up’ exercise was actually an amendment that would materially alter the dispositions in the will.

One of the many important lessons from this case was that while medical evidence is useful

‘it should not be relied upon by a court to the exclusion of all other evidence when making findings as to capacity, it also underlines the importance of contemporaneous evidence’. People’s lives are often complex and have many layers, if an individual reaches a point in their life where they struggle to make certain decisions they cannot be assessed solely from one perspective, a number of factors should be taken into consideration. Therefore, private client practitioners are encouraged to play close attention to the law of testamentary capacity and ensure that all those involved, from the medical practitioners, to the court are clear on context.