will ownership

Is the Government doing enough to protect vulnerable Will writers?

In dispute resolution, where I’ve built the mainstay of my practice, I’ve come across my fair share of contested Wills – and capacity of Will writers is an issue that is raised again and again.

The image that arises in the popular imagination of contested Wills is one of fraud and mystery, something out of an Agatha Christie novel. A wronged family member or hidden relative.

While this can happen, it’s as much of a surprise to us as to the family. Most contested Wills are far more mundane than that, and often make the assertion that a vulnerable person was at risk of influence or coercion when they made their Will.

This is particularly prevalent in families where the deceased person had a long-term illness or condition, such as dementia, which affects capacity but not uniformly.

The issue of limited capacity

Many people who are diagnosed with dementia have some degree of symptoms when they decide to make a Will, if they are prompted to do so by their diagnosis.

This is true of many conditions, but dementia is a challenging issue, because many people with it have capacity for certain decisions or on certain days, but not others. This makes establishing capacity on the day the Will is made incredibly difficult.

Additionally, it may be hard to determine whether the person has understood the gravity of making a Will and the implications of the decisions they have made.

This concern leads on to the source of many family members’ objections to the validity of these types of Wills – that there may not be sufficient safeguarding in place to protect people with certain conditions when making their Wills.

Existing protections

I certainly wouldn’t say that there aren’t any protections in place.

The Mental Capacity Act is designed to ‘protect and empower’ people who don’t have the capacity to make decisions – assuming that they do unless proven otherwise.

Healthcare providers and the NHS are expected to act according to these regulations, giving those with dementia and other dynamic conditions the right to decide on their care, their living arrangements and their financial matters unless contraindicated.

This is a real challenge for someone who has a progressive and changing condition. It can be nearly impossible to determine when someone officially loses capacity – triggering major concerns over the validity of Wills and other directives.

What more can we do?

When discussing the issue of capacity and those who are made vulnerable by medical conditions or age-related dementia, we always need to bear in mind that decisions about an individual’s life, health and finances are theirs to make unless they cannot.

Current capacity laws essentially revoke this automatic right and does so recognising the seriousness of this action.

Ideally, the law needs to take a more individualised approach to determining capacity and have this enshrined in the Will itself, reducing the need to contest a Will on the grounds of capacity after the person in question has died.

Additionally, the onus is currently on the individual family to prove capacity or dispute it. It seems to me that there needs to be a more formalised system in place, dedicated to older clients and those with health conditions affecting capacity, and helping them to digest the Will writing process and its implications for them and their loved ones.

The role of the legal profession

The legal profession has already taken major steps forward for clients, advising on the ability to make decisions on an individual basis – providing loved ones with a better insight into the situation.

In short, we’re doing our part.

From my perspective, independent legal advice is one of the major protections in place for vulnerable people and should be the first port of call for those writing a Will – but not the only one.

We cannot, for example, forget the issue of confidentiality. Advice for the whole family as a collective unit is a great way of combatting undue influence due to medical vulnerability, but it may leave some individuals open to it, with family members privy to the legal advice they are receiving.

We therefore need more protections specific to dementia and other progressive conditions from the Government, recognising the reality of ‘good and bad days’ and the effects of age and co-morbidities – without taking away the liberties of those most at risk of losing them.

By Leanne Philp, Partner, Attwaters Jameson Hill

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