Sadly, because of the aging population, this seems to be becoming a scenario solicitors and GPs are fast becoming more accustomed to identifying – usually within the first meeting with new clients.
Capacity vs Instructions
In general, it is not uncommon for solicitors to be approached for Will appointments on behalf of others, but a solicitor can only prepare a Will based on instructions provided by the person(s) who will actually be signing the Will(s).
Even in the case of a married couple intending to create ‘mirror Wills’ or Wills that cover their combined estate, it is not possible for one spouse to provide Will instructions on behalf of both.
However, in some instances a dementia diagnosis may still be in its early stages and could take years to develop further. If it is still possible for a person to retain information and advice provided by the solicitor throughout the course of the meetings and weigh up decision-making such as:
… then a person could absolutely still be able to create a new Will despite the diagnosis at hand. However, in most cases, even after assessing a person’s understanding, the solicitor will still ask for a Capacity Report before proceeding. Why, you may ask…
Capacity Report & the Law
In England and Wales the Courts are reluctant to allow a successful challenge against a person’s Will because the Law here allows everyone ‘free will’ over the devolution of their estate (as opposed to some Countries which imposed forced heirship rules). That said, there are still ways a Will can be challenged successfully. Those being:
Any capacity concerns a solicitor has must first be addressed prior to the solicitor agreeing to accept the person as a client, because in the usual course of society, only a person with full mental capacity can approve and sign legal documents, terms of conditions etc and instruct professionals such as solicitors and accountants.
Thereafter, once capacity is established, it is the solicitor’s duty as legal advisor, to ensure all of the above potential challenges to an estate are not only considered, but addressed and countered so far as possible before completing their obligations to the client. Therefore, a solicitor will often request a Capacity Report as a safeguard against any potential later claimant coming forward to mount a challenge against the Will on the basis of capacity.
The mere nature of a challenge (whether successful or not) could not only prove costly to the estate but would undoubtedly be stressful and distressing for the family left behind. However, in circumstances of a challenge that could have easily been foreseen and resolved at the outset, the stress to the family would no doubt seem heightened and entirely unnecessary.
The need for a Capacity Report may seem incredibly daunting, but its twofold intention is to add protection to the estate and to ensure Will discussions are pitched at a level matching the client’s understanding, which should in turn, one would hope, make the whole process a lot more stress-free from their perspective.
The importance of regular Will reviews/updates
In some very sad circumstances, it may be entirely too late for a person to prepare a new Will, or be joined in the preparation of mirror Wills, meaning the capable spouse will have the option to update their own Will without impacting on the terms of the incapable spouse’s Will.
The premise being, from the point of view of the Courts, had the incapable person wanted to alter their Will, they would have taken steps to do so sooner.
Of course that may not always be the case and a person often omits to review their Wills as time passes simply because life takes over. It is therefore recommend a person should review their Will every 3-5 years – even if that simply means re-reading their copy at home to ensure the terms, beneficiaries, familial relationships are still up to date and relevant.
It is also advisable to also consider the terms of a Will with each year’s budget, to ensure the tax position of the estate either remains the same or is not, in any way, adversely altered.
Create your new Will
Of course, there is no substitute for bespoke legal advice, but if you do not have a Will in place currently and your circumstances are straightforward, then it is entirely possible to create your own new Will online.