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Mental capacity when making a willMental Capacity for Wills. Specialist Solicitors

In England and Wales, making a will gives someone the legal ability and right to leave their estate and valued possessions to whoever they want to. It’s always best to get the help of a lawyer to ensure a will is drawn up correctly, and during this process the lawyer has to take three key issues into consideration.

• Firstly, the lawyer has to make sure that the testator understands that they are making a will, what a will is and what the will terms state. (Testator is the legal term for a person who makes a will – and “testamentary capacity” is the legal term for whether or not they have the mental ability to make a will. )

• The lawyer must also be satisfied that the testator fully understands what is included in their assets, and the monetary value of what they are leaving to the people in the will.

• Finally, the lawyer must make sure that the testator understands who will inherit from the will, and must be sure that the testator is not under undue influence to make certain people their beneficiary, and that they have the mental capacity to make the will.

Are you worried about whether a loved one who wants to make a will has mental capacity? Our experienced wills lawyers can help.

Every year we deal with hundreds of wills for clients throughout Wiltshire, Hampshire and Dorset and further afield – from our offices in Salisbury, Andover, Fordingbridge and Amesbury.

And we offer FREE initial advice on the phone about wills or indeed about any other aspect of the law. Call us today for a no strings attached conversation to put your mind at rest

Contesting a will and mental capacity

Challenging a will on the basis of lack of mental capacity through the courts is relatively unusual, but can happen when after a death it is suspected that the will was made when the testator lacked capacity.

This can be due to making a will when medically impaired through illness, injury or a condition such as dementia – or because the terms of the will are so odd that incapacity is suspected.

Wills can also be challenged if there are many revised copies of someone’s will, with large discrepancies between each version. This is especially the case if the most recent version of a will was drawn up just before the testator’s death.

Where mental capacity is in doubt

Lawyers have to tread a fine line when it comes to being a judge of whether or not someone has the mental capacity to make a legal will, and follow three steps when there are doubts about mental capacity.

• Get a medical professional to be present and witness the testator signing the will.

• Ensure any changes and revisions to wills are discussed with the testator, including questioning them about the reasons for the changes. This questioning should have the aim of establishing mental capacity.

• Make sure that those who are named as beneficiaries of he will, as well as anyone who may be exerting undue influence on the testator are not around when the will is signed.

If a lawyer follows these three “Golden Rules” when preparing a will, the chances of successful challenges through the court are drastically reduced.

But please note that testing mental capacity is not a memory test; a person can have a poor memory, and  still have mental capacity.What’s more, when it comes to considering capacity, it’s clear that a person’s condition can vary – in particular they can potentially have testamentary capacity one day, but not on the next. In short everyone’s position is unique. It’s particularly important not to make assumptions about someone’s mental capacity simply because they are ill or elderly.

And the issue of capacity also comes up if you have a child with learning disabilities.
Click here to read more about Wills and the learning disabled

Despite this fact, challenges are still fairly common, especially from those who were expecting to benefit from an estate and did not. Courts are often called on to resolve these family disputes and disappointments.

Our litigation team have huge experience of disputed wills and contested probate cases. So if you think you might become involved in a family dispute where the mental capacity of the testator is in doubt – call us today for free initial phone advice.

Click here for more information about making or defending a contested will

Is there an assumption of capacity?

Broadly yes. If you are looking to  establish that a person’s will is valid, you are expected to prove that the testator understood what they were doing. However, provided that their Will was properly executed in the first place, and that the testator appeared rational at the time, there is an assumption that the testator did indeed have sufficient mental capacity to make their own will.

How we can accept instructions when a client no longer has capacity

Under the Law Society’s most recently updated guidance (dated 30 June 2022), our wills and probate solicitors are able to accept instructions from a third-party, where the client no longer has capacity. But we can only do so, if the person who provides those instructions has the legal authority to do so.

The most common examples of a third party with such legal authority are following.

  1. an attorney or deputy authorised by the Court of Protection
  2. a court-appointed litigation friend, for civil litigation work
  3. a representative appointed by a tribunal, for example in mental health tribunal appeals

Statutory wills and the Court of ProtectionStatutory wills The Court of Protection sign

Where it is considered that a person has lost capacity to make a will, you may need to consider applying to the Court of Protection – and to think about a statutory will ( which is a will made following an application to the Court of Protection when someone does not have the mental capacity to make a Will themselves)

Click here for more information about how we can help you make an application to the Court of Protection

Click here for more information about making a statutory will

Diminishing mental capacity – the scale of the problem

According to the OECD (Organisation for Economic Co-operation and Development), one in ten of us in OECD countries will be 80 years of age or older by 2050, an increase from one in 25 as recently as 2010.

Currently one in five of us will suffer from dementia in our lives and it is anticipated to grow at an alarming rate. Many people incorrectly refer to Alzheimer’s and dementia as two different diseases, yet Alzheimer’s is only one of over a hundred types of dementia, but because it is the most common form it receives the highest profile in the media.

The statistics are exactly why so many practical problems and so much distress can be avoided by drawing up a Lasting Power of Attorney in advance of loss of capacity – by granting a trusted person legal authority in relation to property, finance, health and welfare matters. Those statistics also emphasise why everyone needs a will, and one that is regularly updated

For more information about how a Lasting Power of Attorney may help you, contact our specialist team of solicitors. OR click here for more information about making a lasting power of attorney

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