In our recent successful fifth roundtable discussion held at the vibrant Engine Shed meeting rooms there was a lot of debate surrounding the role of Wills and probate specialists and/or firms when assessing mental capacity of their clients before taking instructions.
It was felt that steps were needed to be put in place that professionals/firms would comply with when meeting clients to ascertain whether a person lacks capacity to make decisions for themselves.
In recent years there has been an increase in contentious probate and it is believed if measures were put in place it would potentially reduce contentious probate claims.
Industry experts talk about the potential introduction of procedures in which the Wills and Probate sector would comply to in order to ascertain their client’s capacity, whether they think a professional’s personal judgement is enough – and if they think they [and their firm] have enough measures in place to protect against potential negligence……
Emily Deane, Technical Counsel at The Society of Trust & Estate Practitioners (STEP), commented. She said: “STEP believes that there is considerable scope to reduce the prospect of testamentary disputes if testators and their advisors ensured that detailed instructions are given, recorded and, in the appropriate cases, an assessment of capacity is made by a suitably qualified practitioner. Whilst these steps in themselves will not be able to prevent all testamentary disputes they can considerably reduce the prospect of litigation. It would also be prudent for firms and professional bodies to provide specialist training educating Will writers in relation to the test for capacity, how to apply it in practice and how to observe and record the conclusions.
“We endorse the Law Commission’s aim of modernising the law around Wills and making it more accessible to the public. Given that the test originates from a ruling made in 1870 it would seem sensible to clarify and update much of the archaic language used. However, care would need to be taken when transposing the test into modern language, to reduce the potential for already settled aspects to be re-litigated due to the changed language.”
Dennis Gardener, Chairman of Institute of Professional Willwriters, said: “From the Institute’s point of view, any knowledge or experience we can gain as individuals to flag up that a potential client might have problems with capacity is always useful and although we already run courses on “Advising the Elderly” to be able to run them for “Capacity Awareness” would be of great interest to our members.
“Up here in Scotland where I practice we also have the problem that our Power of Attorneys have to signed off by a Medical Practitioner or a Solicitor to have the qualifications and legal ability for qualified Will Writers to also have that right would solve a major problem where less and less Doctors Practices are allowing their Doctors to sign off POA’s and many Solicitors won’t either without a Doctors agreement!
“Potential negligence claims are gaining popularity and no one is immune from being in the firing line so any measure that helps us cover as many eventualities as is possible would strengthen our case to protect ourselves.”
Brian McMillan, Director General of The Society of Will Writers further added. He said: “Unfortunately I was unable to make the last round-table meeting where this subject was addressed in depth, so my comments are in answer to the question.
“On the subject of mental capacity and the making of Wills, the current reference to Banks v Goodfellow 1871; and in more recent times the guidelines laid out in the case of Kenward v Adams where the judge set out his view now called the Golden Rule, whilst in principle it appears to ‘do the job’ a consultant has to first determine whether the testator has or has not sufficient mental capacity in order to apply the golden rule so as to avoid any unnecessary stress and upset when being asked their permission to write to their GP and question their mental capacity. The alternative is to simply judge the testator purely on age and is therefore in my view an insult and even possibly ageist towards the client.
“I do not think that the introduction of any statutory procedures would work other than to further upset elderly and already vulnerable clients.
“What would these ‘procedures’ look like? Are professionals no longer going to be able or even want to take instructions from elderly clients? And who decides what age is elderly?
“Age is not a condition or an illness, therefore it cannot be judged, we have to rely on the fact that professional Will writers and solicitors are properly trained, have a suitable questionnaire or check list if there is any doubt as to testamentary capacity and have the facilities available to them to seek guidance if there is any doubt and in extreme cases use one of professional companies who are properly trained to assess mental capacity.
“A person first diagnosed with dementia may take years before it affects them to the point that they are unable to make decisions for themselves. In these cases, we can refer to Parker v Felgate to test whether the professional’s actions were correct around the execution of the Will or other document.
“How are companies, and there are many solicitors’ firms as well as Will writing companies, who offer on-line Will going to show proof? Whilst it’s not my favoured method of taking instructions, I cannot see how it can?
“All of us in the profession can certainly strengthen the level of training and education on mental health and testamentary incapacity, for the Society of Will Writers it is part of our induction course and annual CPD. I will review our training to see how it can be improved.”
