This year's Mental Health Awareness Week from 18 to 24 May 2020 is hosted by the Mental Health Foundation and has the theme of "kindness."

In this piece, we explore how mental ill-health can affect decision-making such as making a gift or a legacy in a Will and how the law requires different tests to be applied depending on the nature of the decision.

It is not correct to presume that a person suffering from mental ill-health or impaired decision-making would be unable to make decisions to make a gift or a Will.

The Mental Capacity Act 2005 provides that a person must be assumed to have capacity until it is established they do not and a person is not to be treated as unable to make a decision merely because they make an unwise decision.  A lack of capacity cannot be established simply by reference to a person's age, appearance, a condition, or an aspect of their behaviour.

The test to be applied under the Mental Capacity Act 2005 to determine whether a person can make a particular decision requires the person to be able to understand and retain the relevant information, use or weigh the information as part of the decision-making process and communicate their decision, whether by talking, sign language or any other means.

In the context of making a Will, a different test is applied.

The Court will consider whether the person understood the nature and effect of making a Will, whether they understood the extent of their property and the claims to which they ought to give effect.  In addition, there should be “no disorder of the mind which poisons his affections or perverts his sense of right” which can be interpreted to mean that unless a person’s affections are poisoned by the disorder they are suffering from, they may still have capacity to make a Will.

The effects of mental ill-health are extremely complex and in the context of litigation expert evidence is sometimes required to try to determine whether a person lacked capacity.

However, an inherent difficulty in the test for making a Will is that the test is often applied retrospectively, after the person has died.  For that reason, additional evidence is often required to assist the expert, such as witness statements from friends and family or records from the person’s doctor or hospital.

In summary, whilst a person’s capacity could be adversely affected by a wide range of disorders or conditions, it is not a foregone conclusion that a person suffering from mental ill-health lacks capacity to make a gift or a Will.  If there is any doubt, specialist legal advice should always be sought.