Taking a client’s detailed wills instructions is the first key step practitioners should take; but it’s important to probe the client further for vital information about their family members, other potential claimants and asset ownership.

The reality is that there are several traps for the unwary, for instance not getting a clear picture of property ownership; failing to provide timely advice on the tax implications; and ignoring ‘red flags’ around the client’s capacity.

Capacity

Testamentary capacity can be a particularly tricky issue, but the solicitor who is able to recognise the warning signs and take appropriate action to protect the client - the Golden Rule – can discharge their professional duties appropriately.

It’s not uncommon for capacity to be a central issue in contested wills cases. Unfortunately, such cases are only going to increase with the UK’s ageing population and the growing prevalence of dementia diagnoses. Alzheimer’s Research UK estimates that dementia cases globally are likely to triple by 2050.

It’s not just long-term conditions such as dementia and Alzheimer's that can affect capacity. An individual’s testamentary capacity may be undermined by a short but severe period of grief; learning difficulties; terminal illness; and mental illnesses.

Dementia

Dementia presents particular challenges for wills practitioners. It requires a clear understanding of best practice in relation to recognising dementia symptoms, the potential need for capacity assessments, when to arrange an assessment and your subsequent communications with the assessor.

However, a client may have dementia yet still have capacity to make a will. A person has testamentary capacity if they understand the nature and effect of making a will; understand the extent of their property and assets; be aware of who would expect to inherit; and be free from any mental disorder or insane delusions that could affect their judgement (Banks v Goodfellow (1870) [our emphasis].

A client may have dementia or other mental disorder, but their judgement may not be impaired at the relevant time for the purposes of capacity to make their will.

However, if you do have reason to believe the client may not have the required testamentary capacity (or indeed it could later be argued that they lacked capacity) you should consider following the Golden Rule of best practice. The same applies if the client is elderly or is suffering serious illness.

An independent capacity assessment should be obtained from a doctor certifying your client has testamentary capacity, before proceeding with the will. It is also good practice to ask the practitioner to witness the client’s will. Full and contemporaneous records and attendance notes should be kept in case a future dispute arises.

Defending a challenge

A will that is rational on the face of it, and there is nothing suspicious or irregular, it is presumed the testator had testamentary capacity. If a claimant can demonstrate real doubt about the will-maker’s capacity – the burden of proof is on the executor/s to satisfy the court that they did have capacity.

This is why following the Golden Rule is so crucial, even though not a legal requirement, if you have concerns around a client’s testamentary capacity.

We can expect many challenges by aggrieved relatives in years to come on the basis of lack of capacity to make their will. Should a future challenge arise, the practitioner’s careful and contemporaneous file notes and records – including a capacity assessment or other medical records – should suffice to swiftly prevent legal action from progressing. It will also guard against a potential professional negligence claim.

In our in-person conference, you can look forward to bringing your knowledge up to date in the areas of taking wills Instructions, capacity assessments and best practice. For information on our upcoming event see here.