Establishing the testamentary capacity of the testator has long been a challenge for those tasked with drafting a Will. It is not always a clear-cut decision, and any assumptions made by the practitioner could be flawed, opening the door to potential disputes in the future. Indeed, the number of contested Wills is on the increase and for the time being at least, this looks likely to continue.
Of course, in many cases, the sufficiency or absence of mental capacity will be clear, but in others, less so.
Clearly then, it is vital to verify the mental capacity of a Testator with the aim of avoiding contested Wills, increased costs, time expenditure and the inevitable concomitant distress.
As it is, the Testator is required to understand the Will itself, what assets they hold and the subsequent claims upon those assets, so if there is any question that this is not the case then steps should be taken to clarify the situation:
If a medical opinion from an appropriately qualified practitioner is sought to confirm the client’s testamentary capacity, then it should be a current and not historical opinion. This is to minimise any future suggestion that mental capacity had diminished over time. It may also be worth asking a medical practitioner to witness the Will while providing them with a summary of the client’s wishes (with the client’s consent).
If a medical opinion is not obtained, it should be made clear to the client that lack of testamentary capacity is grounds for a challenge to their Will to be made, potentially rendering it invalid. Clear records should be kept of the advice the client was given and their decision and reasons to proceed, nonetheless. This should also be the case if any remaining ambiguity over their capacity suggests that it may not in their best interests to draft the Will at all. In this case, the adviser should explain their reasons to the client and record their grounds for doubting capacity.
Clearly, proving the testamentary capacity of a client can be a more complicated process than may first appear. Building a relationship with trusted, professional advisers over time may prove invaluable.
Of course, in many cases, the sufficiency or absence of mental capacity will be clear, but in others, less so.
Clearly then, it is vital to verify the mental capacity of a Testator with the aim of avoiding contested Wills, increased costs, time expenditure and the inevitable concomitant distress.
As it is, the Testator is required to understand the Will itself, what assets they hold and the subsequent claims upon those assets, so if there is any question that this is not the case then steps should be taken to clarify the situation:
If a medical opinion from an appropriately qualified practitioner is sought to confirm the client’s testamentary capacity, then it should be a current and not historical opinion. This is to minimise any future suggestion that mental capacity had diminished over time. It may also be worth asking a medical practitioner to witness the Will while providing them with a summary of the client’s wishes (with the client’s consent).
If a medical opinion is not obtained, it should be made clear to the client that lack of testamentary capacity is grounds for a challenge to their Will to be made, potentially rendering it invalid. Clear records should be kept of the advice the client was given and their decision and reasons to proceed, nonetheless. This should also be the case if any remaining ambiguity over their capacity suggests that it may not in their best interests to draft the Will at all. In this case, the adviser should explain their reasons to the client and record their grounds for doubting capacity.
Clearly, proving the testamentary capacity of a client can be a more complicated process than may first appear. Building a relationship with trusted, professional advisers over time may prove invaluable.