The Assessment of Testamentary Capacity Viewed from the Perspective of the UN Convention on Rights of Persons with Disabilities

Abstract

With Article 12 UNCRPD, the Convention changed the paradigm from ‘substituted decision-making’ to the principle of ‘supported decision-making’ for people with disabilities. Is it possible to devise a universal concept for decisional competence? Can or should testamentary capacity be assessed based on the principle contained in Article 12? The author makes a practice proposal for expanding the legal professional’s assessment of decisional competence.

1. Introduction

The UN Convention on the Rights of Persons with Disabilities¹ {UNCRPD} features autonomous disposition for people with disabilities as a key principle.² This autonomy pertains to acts relating to property law and all decisions in non-property matters. Article 12 of the Convention states that people with disabilities must be considered to have full legal capacity. This does not alter the fact that the performance of acts intended to have legal effect, such as the making of a will, does require decisional competence. However, the UNCRPD does not provide a definition of ‘decisional competence’.

With Article 12, the Convention changed the paradigm from ‘substituted decision-making’ to the principle of ‘supported decision-making’ for people with disabilities. This chapter examines whether it is possible to devise a universal concept for decisional competence and how decisional competence can or should be assessed based on the principle contained in Article 12. In Section 2, the author discusses the creation of the UNCRPD and the meaning of Article 12 of the Convention. In Section 3, the author explores the relationship between Article 12 and the way in which testamentary capacity is currently (still) assessed. Section 4 contains the author’s reflections on support for decision-making in relation to wills. How will the legal practitioner implement supported decision-making in practice in assessing decisional competence? The author makes a proposal to this end in Section 6. Section 6 also contains the conclusion.

2. The UN convention on the rights of persons with disabilities

2.1 History of the convention

The Convention has a long history. On 3 December 1982, the United Nations General Assembly (A/RES/37/52) accepted the World Programme of Action concerning Disabled Persons. For 10 years, this action programme was supposed to promote the participation of people with disabilities and their equality in society. The aim of the programme was also to promote opportunities worldwide for people with disabilities to develop. This is regardless of how developed the country they live in is.

Then, in 1991, the General Assembly accepted the Principles for the protection of persons with mental illness and the improvement of mental health care.³ This developed standards and formulated guarantees with the aim of protecting against the most serious forms of human rights violations. This could include the abuse of people with disabilities, unauthorised restraints and isolation, and involuntary treatments such as sterilisation. Based on the Principles, standard rules were drawn up in 1993.⁴ These include advice on how barriers that could hinder equal participation in society can be eliminated.

From December 2001, an ad hoc committee developed a proposal for a Convention to promote the rights and dignity of persons with disabilities. The General Assembly ultimately adopted the Convention on 13 December 2006. It was opened for signing at the United Nations headquarters on 30 March 2007. The condition of entry into force was that at least 20 countries had to adopt the Convention. This condition was satisfied on 3 May 2008. An Optional Protocol to the Convention was created at the same time, providing an individual right of complaint to the Human Rights Committee.⁵ The Optional Protocol also gives investigative powers to the United Nations.

Pre-existing human rights treaties had already devoted attention to persons with disabilities before the creation of the Convention, in the sense that it is assumed that every human being is treated equally. This is reflected, for example, in the Universal Declaration of Human Rights. It is also reflected in the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the European Convention for the Protection of Human Rights and Fundamental Freedoms.⁶ These treaties protect everyone, while the Convention specifically addresses the position of persons with disabilities. The Convention gives an applied elaboration of the rights and obligations contained in general human rights treaties. No new rights are thereby created.

2.2 The interpretation of the term ‘disability’

A definition of the term ‘disability’ can be helpful in interpreting the term ‘decisional competence’. However, the Convention does not provide an exhaustive definition of what constitutes a person with a disability. The preamble to the Convention states that the concept of disability is an ‘evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others’. If a definition is included at all with regard to what should be considered disability, it is in the purpose of Article 1 of the Convention: ‘Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.’

As no exhaustive definition is included, the States Parties can further elaborate the concept of ‘disability’ in their national legislation. This then takes as its starting point the essence of Article 1 of the Convention, that disability involves functional impairments. Functional impairments can create social and physical barriers in participating in society and also in terms of equality with others in society. In the elaboration in national legislation, the temporary or non-temporary nature of the disability could also be fleshed out. Indeed, this is not in the Convention definition.

Several countries have made their own law for the rights of persons with disabilities. The United States is an example of this with the Americans with Disabilities Act which has fleshed out the concept of ‘disability’.⁷ Section 3 states: “The term ‘disability’ means, with respect to an individual.

1. a physical or mental impairment that substantially limits one or more major life activities of such individual;

2. a record of such an impairment; or

3. being regarded as having such an impairment (as described in paragraph (3)).”

The Act stipulates, among other things, that disability should not be a factor in hiring employees. Furthermore, public buildings, offices, and public transport, among others, must be easily accessible for people with disabilities.

Apart from elaboration at the national level, an interpretation of the concept of ‘disability’ has also been sought within Europe. The Court of Justice of the European Union concurs with the definition set out in Article 1 of the Convention but adds to this ‘long-term’. In one of the European Court cases, it arrived at the following definition of disability:

‘[A] disability resulting in particular from long-term, mental or psychological conditions which, in interaction with various barriers, may prevent the person from participating fully, effectively and on an equal footing with other workers in working life.’⁸

The World Health Organisation has translated the 2019 United Nations Disability Inclusion Strategy into health policy in relation to persons with disabilities.⁹ Here, the WHO uses ‘disability’ as follows: ‘[d]isability is … not just a health problem. It is a complex phenomenon, reflecting the interaction between features of a person’s body and features of the society in which he or she lives.’ This WHO health policy was launched on 3 December 2020.¹⁰ The United Nations Disability Inclusion Strategy aims to be a framework for action within all UN-affiliated organisations. This action is aimed at supporting sustainable change in the position of people with disabilities around the world. It is also intended to address challenges faced by persons with disabilities in the most vulnerable areas of Africa, Asia, Eastern Europe, and Latin America.

2.3 The principle of equality in legal capacity in Article 12

In the context for this chapter, it is important to note the following. Article 12 is based on the premise that a person with a disability is autonomous and is considered, in principle, to have legal capacity.¹¹ Legal capacity includes entering into contracts and (thus) also making wills.

The article reads as follows:

‘Article 12. Equal recognition before the law.

1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

2. States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.’

Under the Convention, States Parties are committed to supporting persons with disabilities as much as possible in the exercise of their legal capacity. Article 12 is seen as the most important part of the Convention, and its meaning is the subject of debate.¹² Legal capacity, according to the Convention, means the ability to independently perform inviolable acts intended to have legal effect, the power of disposal, the management over one’s assets, and the authority to decide in matters of a non-property nature.

In Article 12 of the Convention, the starting point that people with disabilities are equal to people without disabilities is laid down. It follows from this article that persons with disabilities are considered to have full legal capacity. Article 12 seems to effect a shift from the substituted decision-making paradigm to the principle of supported decision-making.¹³ Substituted decision-making involves a guardian or administrator taking a decision or acting on behalf of and for the person with the disability. In short, supported decision-making is not about taking decisions on behalf of a person but rather about supporting the person with a disability in taking a decision (themselves).

The shift in the paradigm has led to legislative changes in several states, especially in the area of protective measures such as administration and guardianship.¹⁴ After all, in many countries, there is the figure of a guardian who takes a decision on behalf of and in the interest of the person with intellectual or psychosocial disabilities. There is an ongoing debate in the literature about how Article 12 should be interpreted, i.e. whether or not it excludes any form of substituted decision-making.¹⁵

Article 12 is accompanied by a General Comment.¹⁶ According to this Comment, it follows from Article 12, among other things, that States Parties must take measures to ensure the right to equality for persons with disabilities. To this end, States Parties must examine all jurisdictions to see whether legal capacity is not limited. If it is indeed limited, this limitation must be removed. Within the concept of ‘legal capacity’, the General Comment gives rise to the distinction between two elements (Article 12, paragraph 2.12, p. 3). The first is the legal capacity for rights: to be a holder of rights. This entitles a person to full protection of his or her rights by the legal system. The legal capacity to act is about exercising rights and entering into legal obligations. The legal capacity to act may be restricted if a court has imposed protective measures for the person, such as guardianship and administration. It follows from Article 12 that care must be taken to ensure that the measure does not go beyond what is necessary in that situation and that it is also proportionate to the impairment(s) that the person concerned has.

2.4 Mental capacity

According to the General Comment, legal capacity and mental capacity are two distinguishable concepts. Whereas legal capacity refers to having rights and obligations and being able to exercise them, mental capacity refers to a person’s decision-making skills (Article 12, paragraph 2.13, p. 3). The latter vary from person to person and depend on many factors, including social and environmental factors.

The General Comment further elaborates on what legal capacity means. From the description given in the General Comment, the term is well defined. This is different for the concept of mental capacity. Mental capacity is not only different for each person, but cannot be generalised, according to the Committee. The General Comment argues as follows: ‘The concept of mental capacity is highly controversial in and of itself. Mental capacity is not, as is commonly presented, an objective, scientific and naturally occurring phenomenon. Mental capacity is contingent on social and political contexts, as are the disciplines, professions, and practices which play a dominant role in assessing mental capacity.’¹⁷

From the reports of some of the States Parties, the Committee found that legal capacity and mental capacity become intertwined to the extent that a person with impaired decision-making skills—often as a result of a cognitive or psychosocial disability—is deprived of legal capacity as a matter of course. In these States Parties, the decision to deprive persons of legal capacity is based on approaches such as:

• the status approach, a diagnosis of impairment is made on the basis of which the person is considered to be without legal capacity;

• the outcome approach, the decisions a person makes are assumed to have negative consequences for that person;

• the functional approach, a person’s decision-making skills are considered deficient.

The Committee mainly focuses on the functional approach used by the States Parties. The functional approach is used to assess mental competence. Underlying this assessment is the question of whether a person can understand the nature and consequences of a decision and/or weigh up the relevant information. In the Committee’s view, this approach is flawed for two main reasons, firstly because it is applied in a discriminatory manner to people with a disability, and secondly because it presumes to be able to accurately assess the inner workings of the human mind. If the person fails this ‘test’, he or she is denied a fundamental human right (the right to equal treatment). The Committee thus believes that this approach unnecessarily harms people with disabilities.

Not only under the functional approach but under all the approaches mentioned, according to the General Comment, a person’s disability or impaired decision-making skills can be considered legitimate grounds for denying his or her legal capacity, thereby lowering his or her status as a person before the law. Article 12 does not allow this, because it could be seen as a discriminatory denial of legal capacity. States Parties are required in these situations to provide support to the person with disabilities to enable them to exercise legal capacity. This refers to ‘supported decision-making’. According to the Committee, this requires new, non-discriminatory indicators of support needs (General Comment, III.29).

The ‘mandate’ that seems to follow from this is not that States Parties should always consider persons with disabilities, regardless of the nature of that disability, to have legal capacity. Rather, Article 12 envisages the use of protective measures, such as guardianship and administration of the disabled person’s assets as a last resort. And within the protective schemes, possibilities should be sought to allow the entitled person to decide for themselves as much as possible if they have some decisional competence to do so. It can also be inferred from the General Comment that the approaches (as discussed above) on which the decision to consider a person legally incompetent or, as the case may be, decisionally incompetent is based are open to question.

3. Mental capacity and testamentary capacity

3.1 Is there a relationship between Article 12 of the convention and testamentary capacity?

Article 12 of the Convention and the explanatory notes thereto clearly put the legal capacity of people with disabilities at the centre. However, how does this article affect how decisional competence is assessed in the context of making wills? Is it necessary to change the current way of assessing? Or, on the contrary, could Article 12 provide the inspiration to want to change the current way of assessing?

Legal capacity refers to the fitness in general of a natural person to be able to independently perform acts intended to have legal effect. One of those acts intended to have legal effect is the making of a will. Under Dutch law, however, it is possible even for a person without legal capacity to make a will. This is because there are exceptions to the principle that a person must have legal capacity. A first exception is that of minors: they can make a will from the age of 16. Even those who have been placed under guardianship can still make a will with the permission of the subdistrict court.¹⁸ The criterion for making a will is that the person making the will be decisionally competent (and not necessarily have legal capacity), in other words, that they have testamentary capacity.

Legal capacity can be seen as an all-or-nothing state: either one has it or does not. Mental capacity, on the other hand, has gradations and depends on various factors, as also reflected in the General Comment as described above. Mental capacity is a relative state and may be reduced to some extent, for example, due to a person’s advanced age [1]. There is also a link between mental capacity and the nature of the legal act. Mental capacity may be present for one legal act but not for another.

Testamentary capacity assesses the mental capacity specifically for the making of a will. After all, the testator must be able to determine his or her will with regard to his or her estate. In other words, a certain degree of decisional competence must be present to make a will. The person’s intention must be aimed at bringing about the legal consequences as they follow from the will. It concerns a task-focused decisional competence, therefore. There are national but also international criteria for determining whether testamentary capacity was or is present at the time a will is made. Some of these are discussed in the next section.

3.2 Banks versus Goodfellow criteria

In common law countries, more specifically Commonwealth countries, the Banks v Goodfellow (1870) judgement has been a benchmark for the development of criteria for testamentary capacity for over 150 years.¹⁹ The judgement provides guidance on (retrospectively) assessing testamentary capacity.²⁰ Due to the rulings that followed Banks v Goodfellow, the criteria formulated in this judgement have become the ‘Banks v Goodfellow test’.²¹

There have been many drastic changes since 1870 especially in terms of social attitudes, the state of medical science, and laws and regulations. All areas that are relevant to assessing testamentary capacity. In terms of legislation, for example, the Mental Capacity Act came into force in the UK in 2005. This raised the question of whether the Banks v Goodfellow test would still apply or whether it had been replaced by the Mental Capacity Act 2005. Recently, the Clitheroe v Bond judgement confirmed that the ‘test’ still applies when assessing testamentary capacity.²² And that the Mental Capacity Act 2005 did not change that.²³

Briefly, the Banks v Goodfellow test means that the person making a will (known as the testator) must meet the following criteria:

• must appreciate the nature and consequences of making a will;

• must understand the extent of his or her property;

• should consider any moral claims to their estate; and

• must not be affected by any disorder of mind or insane delusion.

Incidentally, it has been argued that these criteria—more than 150 years old—need to be updated. This argument is made not only from the legal perspective, but also from the medical perspective.²⁴

In several Commonwealth countries, the Banks v Goodfellow test has been further ‘fleshed out’. In Canada, for example, this can be seen in judgements such as Leger v Poirier²⁵ and Scott v Cousins.²⁶ In British Columbia, the Banks v Goodfellow test was examined in 2013 by the British Columbia Law Institute from the perspective of codifying a test for testamentary capacity. This institute recommended as the outcome of the study that the test should not be enshrined in legislation. Part of the reason for this is that the test is aimed at obtaining an equitable result, rather than certainty about testamentary capacity.²⁷

We see the Banks v Goodfellow criteria not only in the assessment of testamentary capacity in common law countries in the (former) Commonwealth. We see roughly the same criteria in civil law countries and common law countries outside the Commonwealth, although not (explicitly) based on Banks v Goodfellow.²⁸ In the United States, for example, the case law of the various States adheres to criteria that boil down to the following:

• the testator comprehends the natural objects of his bounty;

• the testator understands the kind, nature, and extent of his property;

• the testator knows the manner in which he desires his act to take effect;

• the testator realises the effect his act will have upon his estate [2].

Incidentally, a general lawyers’ manual has been developed in the United States that focuses on the assessment of the mental capacity of older clients. It also succinctly works out the decisional competence in relation to a number of legal acts, such as the making of gifts and the making of wills [3]. Specific cognitive functions are mentioned, which the lawyer should inquire about in the context of testamentary capacity. These cognitive functions are as follows:

1. Comprehension and judgement, which are required to understand what a will is, the extent of assets and the claims of beneficiaries;

2. Long-term memory, which is probably the most essential memory task required for knowledge of assets and claimant/heirs;

3. Immediate recall or registration, which is important because of its impact on cognitive performance in general; and

4. Expressive and receptive language which are required to communicate with legal advisors and beneficiaries and to give instructions.

Deciding whether testamentary capacity is or was present at the time the will was made is a legal decision. It culminates in whether or not a will can or could have been made. The decision is made by the legal professional involved in the making of the will or by the court.

From the Banks v Goodfellow criteria, we can see that the assessment of testamentary capacity is not only diagnosis-specific, in other words that not only the disease from which the testator suffers is taken into account. This complies with the criticism found in the General Comment to Article 12 regarding the status approach. However, we do not see supported decision-making reflected in the Banks v Goodfellow criteria; nor has it emerged as such in subsequent case law.

Despite the legal nature of the assessment, not only legal professionals are involved in it. If the legal professional has doubts about a testator’s testamentary capacity, a medical or psychological examination is often conducted. As a result, medical and/or psychological professionals are also involved in the assessment of testamentary capacity.

3.3 Medical or psychological examination for the assessment of testamentary capacity

In a number of cases, the legal professional may need an examination of a testator’s decisional competence from a medical or psychological perspective. For example, if the testator suffers from a disease that could affect decisional competence or if the testator is of advanced age.²⁹ The Banks v Goodfellow test is—as previously established—a test on which a legal decision on testamentary capacity is based. It does not answer the question of what criteria the medical or psychological examination should meet. Incidentally, based on this test, the legal professional is also not obliged to have this examination done. It is also unclear which professionals should be asked for an examination: a psychologist, neurologist, geriatrician, general practitioner, or another medical professional?

It is obvious that the medical or psychological examination requested has multiple contents. In any case, it involves a thorough evaluation of the mental state and identification of physical diseases which affect brain functions. Here, consistency should be sought with the criteria from the Banks v Goodfellow test. After all, if that consistency with the criteria is not sought, one is asking for a general test of decisional competence for the performance of acts intended to have legal effect. The Bank v Goodfellow criteria pertain to the making of a will. The question of decisional competence then focuses on the question of whether the testator—the will he or she has in mind—can make.³⁰

Because medical professionals may be asked to conduct an examination, the International Psychogeriatric Association (IPA) has set up a task force on testamentary capacity.³¹ The mandate of this task force is to draft ‘contemporary’ guidelines for the assessment of testamentary capacity [5]. One of the assumptions included in the guidelines is that cognitive impairment or neuropsychological dysfunction in one person can result in testamentary capacity and in another can result, conversely, in testamentary incapacity. This depends on several factors, such as the complexity of the will that the person wants to make. Several other organisations in the medical sector have also developed guidelines that provide professionals with concrete tools to carry out an evaluation of a testator [6].

Conducting such research is a complex task for medical professionals. For the physician or psychologist themselves, it also raises ethical issues in their professional practice, as it may go beyond one’s professional competence and it requires the informed consent of the testator to be examined [7]. Moreover, good cooperation between the legal professional and the physician or psychologist is required.

3.4 In whose interest is testamentary capacity assessed

There must be testamentary capacity at the time of making the will. After the testator dies, it may be called into question. The will can be challenged on this ground by interested parties. The testamentary capacity must then be determined posthumously. The report from the assessment of testamentary capacity drawn up by the lawyer or civil-law notary—if involved in the creation of the will—may be included in the court proceedings. Incidentally, the lawyer or civil-law notary will not always have made a record of the assessment of testamentary capacity. After all, the main rule is the assumption that a person has legal capacity. Testamentary capacity will only be investigated if there is reason to doubt decisional competence.

If an assessment of testamentary capacity is needed, in whose interest is it then conducted? To answer this question, two situations can be distinguished:

• ante-mortem: a lawyer or civil-law notary is involved in the making of the will.

The examination serves to assess whether testamentary capacity is present in the testator so that a will can be drafted.

• post-mortem: the will is challenged by heirs or other interested parties after the testator’s death. The court must determine whether the testator had the necessary testamentary capacity at the time of making the will.

At first glance, it seems that the assessment ante-mortem is in the testator’s interest. And the assessment post-mortem, in the interest of the heirs/interested parties, or the public interest (in the form of legal certainty).

However, I am of the view that the assessment done both ante-mortem and post-mortem is in the interest of the testator as well as that of heirs/interested parties and also in the public interest. After all, ante-mortem the interest of the heirs is already present. The outcome of the testamentary capacity assessment results in whether or not a will is made, which affects the interest of the heirs/interested parties. The public interest is also already present ante-mortem because if a person without decisional competence makes a will, there is a risk that the will will be annulled after the testator’s death. Those who were designated in the will as heirs then turn out not to be the heirs. Annulment of the will by the court can take place years after the death. Incidentally, in most countries, third parties acting in good faith will enjoy protection if they have relied on the will.

How ‘great’ the interest of the heirs/interested parties in investigating testamentary capacity is may vary from country to country. This is because in some countries, there are more possibilities for ‘challenging’ the will than in others. The assertion of decisional incompetence, which can be complex post mortem, is then unnecessary because ‘modification’ of the effect of the will can be achieved on another legal ground. In the UK, for example, a variation order amending the will can be sought from the court after the death. A famous example in which the will was amended is that of Princess Diana.³² In the Netherlands, there are several grounds on which wills can also be ‘challenged’. For example, arguing that attaching legal consequences to the will would be contrary to reasonableness and fairness and/or that the will is unclear and needs to be interpreted.³³ Another factor is whether the inheritance law of the country in which the will is being challenged recognises a forced share or other legal rights for family members. If these are compulsory claims, invoking them can result in part of the estate’s assets or other financial provision being obtained at the expense of the estate. This procedure can be a good deal simpler than contesting the testamentary capacity to be determined post-mortem.

For the testator, there is a strong interest in an examination of testamentary capacity, both ante-mortem and post-mortem. Ante-mortem is the outcome of the examination results—for the testator—in whether or not they can bequeath property. Post-mortem is the outcome of the examination results in whether or not the testator’s last will is followed.

4. Supported decision-making: a complementary approach to testamentary capacity?

In assessing testamentary capacity, tension can arise between two ethical principles. On the one hand, a person’s autonomy (as also follows from the UNCRPD) and, on the other, the need to support and protect vulnerable people. Previously, in Section 2.3, it was described that the UNCRPD shifted the paradigm from making decisions on behalf of persons with disabilities (substituted decision-making) to supporting these people in making a decision (supported decision-making).

While the assessment of testamentary capacity$—$as previously established$—$is not diagnosis-specific, it does involve assessing the testator’s own ability to make a decision about their estate. And not so much the possibilities for the testator to take decisions about their estate with help, supported decision-making therefore.

If the result of the ante-mortem examination is that there is no testamentary capacity in the would-be testator, then no will can be made. That is the end of the matter. Unless the inheritance law under which the testator is operating recognises testamentary representation. In 1999, the Council of Europe placed the decision of whether to classify a legal act as a highly personal act in the hands of national legislators.³⁴ In the Netherlands, the law states that the will is a highly personal legal act. Therefore, it is not possible in the Netherlands for a person to be represented in the matter of making a will by, for example, an administrator or guardian.³⁵

A number of countries allow so-called statutory wills to be made on the basis of testamentary representation.³⁶ Some countries are (still) debating or advocating for the possibility of making statutory wills.³⁷ Testamentary representation may be appropriate for individuals who are in no way able to form and express their will in respect of wills themselves. When it comes to supported decision-making, we think primarily of individuals who can express their will in some way, but for whom it is difficult to perform an examination of testamentary capacity. These individuals need help to sort out their thoughts and desires.

A real-life case study from one of the authors of this chapter may serve as an illustration. An entrepreneur made a will more than a decade ago. At the time, the main reason for him was that he had a business; therefore, in his will, he included a business succession scheme. Indeed, one of his children would have to continue the business after his death. However, things turned out differently than expected because the entrepreneur suffered a brain infarction. The business was then transferred to the intended business successor during his lifetime. This removed the need to distinguish between his children. The entrepreneur was therefore informed by his accountant that his will should be revised. The civil-law notary who made the will for the entrepreneur at the time was no longer in office. So, another notary visited the entrepreneur at his home for an interview, meeting him for the first time. The entrepreneur has difficulty speaking, and his vision has deteriorated greatly due to the brain infarction. Having a conversation is very difficult, which makes assessing testamentary capacity difficult.

To what extent is the civil-law notary in this case obliged to support this person in making bequests? ‘Lawyer’ could be read instead of civil-law notary here for the countries in which this legal professional supervises the making of a will. For example, the civil-law notary could use communication cards with pictograms. Alternatively, the testator could be asked to write down his wishes if there is still sufficient sense of language and it is also physically possible for the testator to write. The civil-law notary then translates the testator’s wishes into the will. Depending on the testator’s pathology, the civil-law notary looks for a way to verify the content of the document with the testator. Is this indeed how he wanted to dispose of his estate? One could consider reading the will in full to the testator and checking each time that it is understood. This, moreover, depends on the text of the will. In cases where the text is not comprehensible enough due to the use of legal jargon, the civil-law notary will present it to the testator in simple terms and always check whether it is understood.

In the Netherlands, the civil-law notary’s willingness to engage in supported decision-making is limited by disciplinary law. After all, after the death, disciplinary proceedings could be initiated against the civil-law notary by filing a complaint about the lack of due care in assessing testamentary capacity. Disciplinary proceedings in which the civil-law notary is imposed a disciplinary sanction could also be the prelude to civil proceedings in which damages are claimed from the civil-law notary for committing professional misconduct. Of course, civil proceedings are also required to have the will annulled by the court on grounds of lack of testamentary capacity. All of this can prompt reticence on the part of the civil-law notary to support a testator in the decision-making process for their will. Dutch disciplinary courts have already ruled several times that in case of doubt about a testator’s decisional competence on their deathbed, a will can still be executed by the civil-law notary. The background to this is that otherwise the testator would be denied the opportunity to make a will. In disciplinary terms, the civil-law notary will not be reproached for executing the will despite having doubts, provided the civil-law notary can later justify the consideration made. There are more lawsuits in the Netherlands about lack of decisional competence at the time of making a will than about the civil-law notary’s refusal to cooperate with the execution of a will on account of decisional incompetence. This could prompt Dutch civil-law notaries to be cautious rather than take the risk and execute the will.

It is not in the interest of the person with a disability if the civil-law notary is reluctant to support decision-making. It is not clear whether there is an indirect mandate from the UNCRPD for legal professionals to engage in supported decision-making. We therefore advocate for such an obligation to be included in (Dutch) law.

The question is how might supported decision-making in wills take place in countries where a will is created without a civil-law notary or lawyer? It is quite conceivable that (there too) a supported decision-making system could be introduced with safeguards against abuse. A trained professional could guide the testator in decision-making.

5. Testamentary capacity in the legal practice

Human rights become tangible in what people experience of these in their daily lives. It is therefore important to include what is contained in the General Comment to Article 12$—$although this concerns legal capacity in general$—$when assessing testamentary capacity. Within the assessment, opportunities will then be sought to allow the person with a disability to decide as much as possible on their own and also to provide the help they need to make the decision. Given the rights a person with a disability has under the UNCRPD, it is not in that person’s interest if it is too readily concluded that the person has no testamentary capacity and cannot make a will.

The question is how can legal professionals, in practice, take into account both ante-mortem and post-mortem the interest of a person with a disability to make bequests? In this section, I make a suggestion of how the legal practitioner can put this into practice using five points for attention.

5.1 Ante-mortem

As hypothesised above, disciplinary and liability law may pose a barrier for the legal professional to take into account the possibilities of supporting decision-making when assessing testamentary capacity. We believe that the legal professional has opportunities to make a Convention-inspired assessment of testamentary capacity, despite the fact that this is not directly mandatory at present.

Below, I provide the five points for attention that the legal practitioner can add to the procedure for assessing testamentary capacity.

1. Medical and psychological examination. The medical professional is usually asked to evaluate the mental state and identify the presence of physical illnesses which could affect brain functions. This is preferably in conjunction with the criteria from the Banks v Goodfellow test. The legal practitioner needs a ‘go’ or ‘no-go’ from the medical professional conducting the examination into testamentary capacity. However, the legal practitioner could additionally ask the medical professional the following. Apart from the impossibilities, can he or she also identify the possibilities: what is indeed possible? Back for a moment to the practical case outlined under 4. Here, the medical or psychological professional could be asked to devote attention to the entrepreneur’s possibilities for communicating. And in addition, make an assessment of whether the entrepreneur can express himself sufficiently in writing. In other words, the usual medical or psychological examination would be expanded to include an assessment of the testator’s capabilities that are required for supported decision-making to work with him or her. This evaluation can provide insight that the legal practitioner needs for the following points.

2. The nature and contents of the will. The legal practitioner can weigh the testator’s wishes against the complexity of the legal arrangements that must be included in a will for that purpose. The legal practitioner can make a general analysis of the arrangements commonly used in wills. In this context, I propose a matrix that takes the following into account as ‘indicators’:

   1. with what nature and gravity of mental disorder this arrangement can be made,

   2. what the nature of the will is and how sweeping it is in effect, and

   3. what the nature of the third-party interests is and the weight of these interests.³⁸

   The indicators function in interaction with each other. The more severe the mental disorder, the more drastic the decision and the weightier the interests. For example, in case of a more severe mental disorder, it may be possible to bequeath an asset from the estate to a nephew of the testator, but more far-reaching arrangements such as disinheritance might not be possible.

   	Nature and gravity of mental disorder	Nature of the will and how sweeping it is in effect	Nature and weight of the interests involved
   disinheritance of a child	a	IV	4
   designation of executor	a, b, c	II	1
   allocation of an asset with minor financial and emotional value	a, b, c, d	I	1

   a. mild disorder; b. moderate disorder; c. disorder; d. major disorder

   I low; II moderate; III average; IV high

   1. low impact; 2. Moderate impact; 3. Impact; 4. high impact

3. Mode of communication. The legal practitioner identifies the best way to communicate with the testator. Is it possible for the testator to communicate verbally? If only non-verbal communication is possible, is it possible to communicate in writing or using a tablet? In case written communication is not possible, is it possible to communicate with the testator using communication cards or other visual aids? The legal practitioner chooses the mode of communication with the testator that best enables the testator to express his wishes for the will. As suggested by us above, the medical or psychological examination could also include identifying the possibilities for communication.

4. Language use. It is clear that language use plays an important role in oral and written communication. Is the will written in simple language or legal jargon? A testator is more likely to understand the consequences of a will if the will is drafted in simple language. Increasingly, case law in the Netherlands is using the difficulty of the language in which the will was drafted as one of the criteria for assessing testamentary capacity post mortem. Legal practitioners would therefore be wise to draft the model texts they use as a starting point for a will in the simplest possible language. Since it is mostly lawyers who will look into the text of the will post mortem, it must be clear which legal provisions and the like are referred to in the will. In the Netherlands, one of the authors of this chapter has therefore developed a ‘hybrid language use’ for notarial deeds.³⁹ With this language use, the civil-law notary primarily focuses on the person(s) signing the deed. Besides recording the arrangement and agreements in comprehensible language, the result of the arrangement and agreements is also noted in the deed. This allows the civil-law notary to be more assured that those signing the deed understand its contents. The legal context of the arrangement and agreements is then documented for the fellow legal professionals who will read the deed one day.

5. Reporting. It is only after death that a will is announced. Sometimes there are years between the time that the will is written and the individual’s death. To what extent then can the legal practitioner still demonstrate whether and how testamentary capacity was established? And, if necessary, also what considerations were made to allow the testator to nonetheless make a will despite the mental disorder (supported decision-making). The medical and psychological report is also part of what the legal practitioner must bring to bear in court proceedings on testamentary capacity if asked to do so. Recording the assessment of testamentary capacity is thus important in connection with possible future lawsuits and it protects the interests of those involved (see 3.3). There are several ways in which the recording can take place. For the civil-law notary, making a record in the will itself and appending the medical examination to the will is a logical way of doing this. After all, the civil-law notary keeps the deeds that are created.

5.2 Post mortem

The post-mortem assessment—as argued earlier—will have to take into account all the interests, including those of the testator. In this assessment, in addition to the test in force in the country, the court will also be able to take into account the aforementioned points for attention. In summary, these points for attention are as follows:

1. the medical or psychological examination in which the possibilities for making bequests were also inventoried and assessed;

2. the nature of the will: how complex is the nature of the arrangement, what impact does the will have and what third-party interests are involved and what weight do they carry?

3. method of communication: what form did the communication with the testator take? Did the method of communication ensure that the testator could adequately express his will on the one hand and, on the other, that the consequences of the will could be made clear to him by the legal practitioner?

4. language use: was the language used in the will such that there was no additional barrier for the testator?

5. reporting: can the legal practitioner (sufficiently) substantiate his assessment of testamentary capacity and whether and in what way support for the decision-making took place?

6. Conclusion

Roughly the same criteria are used to assess legal capacity worldwide. The concrete fleshing out of these criteria takes place at the individual level. Cultural and social factors play a role in this, among other things. In order to respond to the paradigm shift initiated by the UNCRPD, additional points for attention can be used in the legal professional’s assessment of testamentary capacity, which are proposed by the author in this chapter. With these additional points for attention, the possibilities for ensuring that a testator who has a mental disorder can nonetheless make bequests in a responsible manner can be investigated, taking all interests into account.

It would help legal practitioners if a general definition of the concept of decisional competence was included in the Convention. From that basis, national legislation or case law can work towards a modern notion of testamentary capacity that ties in with the rights under the Convention. The General Comments to the Convention could further clarify the ways in which support for decision-making can be provided and whether legal professionals are obliged to engage in this.

In this chapter, the author makes a practice proposal for expanding the legal professional’s assessment of decisional competence. The author strongly recommends that the concepts of decisional competence and, in particular, testamentary capacity are legally enshrined. There is also a need for clarity with regard to the best-efforts obligations of legal professionals in the assessment of testamentary capacity and with regard to supporting decision-making. On the one hand, because of the lawsuits that could be brought against the legal professional on account of alleged testamentary incapacity at the time of making the will. On the other hand, because of the interest of the person with a disability (with a mental disorder), because legal protection would encourage the legal practitioner to be more likely to guide this person through the process of making bequests.

Conflict of interest

The authors declare no conflict of interest.

Conclusion(s)

Article 12 of the UN Convention on the Rights of Persons with Disabilities states that people with disabilities must be considered to have full legal capacity. Therein lies the principle of ‘supported decision-making’ for people with disabilities. The author sees possibilities to apply this principle if there is a diminished testamentary capacity. In this chapter, the author proposes additional points for attention which can be used in the legal professional’s assessment of testamentary capacity.

Notes

Developed in collaboration with Annemarie Elburg (Clinical Psychopathology at Utrecht University, Netherlands) and Freek Schols (Centre for Notarial Law at Radboud University Nijmegen).