According to recent reports, there is an increase in the number of Wills contested because of a suspicion that the person making the Will was suffering from memory loss at the time they made their Will. Specialist lawyers and authors of the report, Irwin Mitchell, state that disappointed beneficiaries argue that when their expected benefactor prepared their Will, or amended an old one, they lacked the mental capacity to do so.
When taking instructions from all clients, professional Willwriters assess whether the person in front of them is able to meet criteria to make their Will. It is called Testamentary Capacity, but the criteria to meet positive Testamentary Criteria is quite simple;
- Do you understand what a Will is for?
- Do you know the extent of your estate? (In other words do you know what you own, and its approximate value?)
- Do you know who should inherit from your estate, and who might be expecting to inherit from you?
If the client answers these questions correctly, the Willwriter continues, but, in any case they are always mindful of any signs of memory loss.
If there is a suspicion of memory loss the Willwriter should have no hesitation in seeking a second opinion from an expert, such as a doctor or consultant. This is obviously very sensitive and has to be dealt with tactfully, but, in most cases, the client accepts the reasons and does not object. Unfortunately, there is an additional expense for the client, but it is a small price to pay for peace of mind that the job is completed correctly.
Irwin Mitchell have observed that as people are living longer, the incidence of memory loss also increases and quite often the client making the Will or Lasting Power of Attorney, has not noticed or realised they are showing signs and effects of losing their memory.
A good professional Willwriter knows what to look for, and, whilst not claiming to be medically qualified, they know when and how to seek a second opinion. In most cases, after consultation and a little extra time, the client may proceed to complete their Will.
On the other hand, Irwin and Mitchell warn that there is also an increase in the incidence of family and friends manipulating vulnerable clients into re-writing their Wills. Sadly it is only when the client has died that the full extent of their vulnerability comes to light but a professional Willwriter uses his (or her) experience to look for tell tale signs of coercion.
The message from Hay Tarn is not to leave preparing your Will until the tell tale signs of memory loss start to become noticeable. Nevertheless if capacity issues are beginning to develop, go to see your local professional Willwriter, who will ensure the Will is valid, has all the back up documentation to go with it and, most importantly, has asked the right questions.