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.
“A family ringing up rather than the client about a will often poses 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.
“A capacity assessment needs to be done across the board at that point so we ask a GP to determine their capacity before we proceed. As solicitors, we take contemporaneous notes and look out for any what I call ‘weird and wonderful’ exclusions. Things like one child getting less than another child or complete exclusions from the will. We look at what they have done in previous wills and get a good feel for the person,” 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. He subsequently lost his case and the will was upheld.
The Law Commission is due to report on the outcome of a 2017 consultation on this issue as the legal test of testamentary capacity currently used is from the 19th century and much has changed.
“Other cases have shown that, where the solicitor has gone through the process of a capacity assessment and fully complied with the Golden Rule, there is very little room for a claim to go further,” says Lucy. “It removes the possibility of a claim on the estate on those grounds. It does stress the need to have a will in place at an early stage.”
Curtis Whiteford Crocker is an enthusiastic member of the Plymouth Dementia Action Alliance and has taken steps to ensure their offices are dementia friendly.
“We used to have a black doormat but apparently dementia sufferers can see that as a hole,” explains Lucy. “So now we have a bright blue doormat. It’s also simple things like clear signage to meeting rooms and exits and lots of pull/push signs and making sure our staff are trained.”