Drawing up a will is a complex business and newspaper headlines are constantly reminding us of how things can go wrong – it can be both emotionally draining and financially damaging to seek redress after someone has died. It’s important to avoid potential claims on an estate by ensuring a solicitor has carried out all the checks and balances needed to draw up a will.
One of the most common challenges to a will is the question of an individual’s capacity at the time it is written. Expert Lucy Atwill, who heads up the Wills and Probate department of Plymouth-based Curtis Whiteford Crocker, says the “Golden Rule” must be followed to determine a client’s capacity to comprehend what they are doing.
“The first form of attack when challenging a will is to say that the person didn’t have the capacity at the time they did it so the ‘Golden Rule’ is there to ensure that you ascertain that they do,” says Lucy.
“If a family member rings up rather than the client, about a will, it will lead us to pose the question: Does the client have the capacity to make a will, or are there just hearing issues on the phone? The family member could have a diagnosis and be in the early stages of dementia, attending the memory clinic or just be forgetful. In this scenario, it would often prompt us to ask the client or the family for a capacity assessment to be done to determine their capacity before we proceed.”
In addition to obtaining a capacity report, where relevant, we as legal professionals are trained to take contemporaneous notes of any discussions and to watch out for any unusual circumstances, such as leaving a child an unequal amount or to exclude them entirely, which could potentially lead to litigation, where the issue of the testator’s capacity and understanding when making the Will would be questioned.
“In these circumstances, we may also consider what they have done in previous wills, and would ask questions about the background, so we have a true understanding of why they have reached this decision” says Lucy.
A recent judgement underlines the need for caution and the importance of having a capacity assessment, says Lucy. In James v James at the High Court earlier this year [February 2018] the son of an elderly Dorset farmer challenged his father’s will on the basis that he did not have a capacity assessment at the time it was drawn up.
Sam James had claimed that the £3 million farm had not been divided fairly between three siblings and his father has been suffering with dementia when he drew up the will, signalling the need for a capacity assessment. Although the Will had been drawn up by Solicitors, they had chosen not to obtain a capacity report even though circumstances within the case would suggest they should have done so. The Judge in this case felt capacity had been established under the ‘Golden Rule’ (set down in Banks v Goodfellow) and upheld the Will as valid, based on the strength of evidence provided by the Solicitors who prepared the Will and their file notes.
“This case demonstrates the need for thorough notes and where relevant the request for a capacity report if there is any doubt as to capacity, as in the case of James v James, I think it would have assisted the Judge in coming to his conclusion much more quickly with much less expense and litigation” says Lucy.
“Other cases have shown that, where the solicitor has gone through the process of obtaining a capacity assessment and fully complied with the testamentary capacity test set out in Banks v Goodfellow, there is very little room for a claim of incapacity to proceed ,” says Lucy.
According to Lucy, she would “recommend that you consider making your Will early on, but if there are any issues surrounding capacity, or should your Will include any unusual provisions, be prepared that a Solicitor may request a capacity assessment to protect both you as the testator but also to avoid the risk of litigation in the future”.