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I have recently come across families wanting to make wills for their elderly mother or father. Whilst this is achievable, it must be done to minimise any risk of a challenge to the validity of the will. Also there must be under no undue influence or pressure. It is important to keep in mind that the instructions need to come from the person making the will. A solicitor should ask family members to remain outside whilst taking instructions.

Where elderly clients are involved, it is also a good idea for the client to undergo an assessment of their capacity to make a will with a qualified medical practitioner, before providing instructions and signing the will. This protects the Will-maker and the beneficiary from any claim on incapacity.

What is capacity?

The Courts have held that the qualities necessary to possess capacity to make a Will can be summarised as having “sound mind, memory and understanding”. The phrase, “sound mind” is a good general description.  However, various cases have elaborated on the issue and have identified the critical elements of “sound mind” in this context. They are the ability to:

  • Understand the nature of making a Will and its effects;
  • Understand the extent of the property of which the Will maker is disposing;
  • Comprehend and appreciate the claims to which you ought to consider. For example, a person making their Will must know who could potentially make a claim;
  • There should be no disorder of the mind and no insane delusions in influencing the disposal of the estate. It must also be remembered that a person who generally lacks testamentary capacity may, during lucid intervals, have the requisite capacity to make a Will.

What happens if I don’t have capacity?

Where a person is not of “sound mind”, when a Will is made, the Will can be set aside and the next earlier Will in time becomes the person’s last Will and testament. If there is no earlier Will, then applications to the Court can be made by family members for letters of administration/intestacy (where a person dies without a Will).

How do I avoid this?

It is critical to have a written report from a medical practitioner to confirm a person’s capacity as this will help reduce the risk of a Court finding that the testator lacked the requisite capacity. Using a solicitor with experience in this area to draft the Will and be present for its execution will also help avoid later problems and disputes.

If you need assistance with drafting a Will, or have any questions about capacity, please do not hesitate to contact me.

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