Making a Will – Planning for the future

Although it is not a pleasant thing to think about, it is important to ensure you have a properly prepared Will in place. Having a professionally drafted Will in place provides peace of mind that your estate should be dealt with in accordance with your wishes and is likely to make the process far easier for those you leave behind when you die.

Yet, there are reports that surprisingly around 60 per cent of the adult UK population do not have a Will, which effectively means they will be allowing ancient laws to determine who receives their estate.

Making a Will is often not the long, complicated and expensive process that people often imagine it to be. Many people have put it off during lockdown, thinking it would not be possible while social distancing. At Harding Evans, in accordance with Government guidelines, we have been operating throughout lockdown. Our offices are now open to the public with measures in place to reduce the risk of spreading the virus.

If you are currently unable to leave your property, we also offer telephone appointments, video calls and witnessing of Wills, even via your front window if required! There are strict rules regarding the witnessing of Wills to ensure they are executed properly.

Unfortunately, challenges to Wills appear to be on the rise, so it is more important than ever to obtain legal advice when preparing your Will, to avoid lengthy and costly disputes after your death.

As we can see from the recent case of Clitheroe v Bond [2020] EWHC 1185 (Ch), not only is it important to ensure the Will is validly executed, but it is also important to prove you have full mental capacity.

In this case, the daughter of the deceased succeeded in establishing that two Wills made by her late mother in 2010 and 2013 were both invalid. The Court found that, following the death of her other daughter, the mother had been suffering from a complex grief disorder that impaired her capacity to make a Will. While she had cognitive function and was intellectually sound, it was found that she had experienced “insane delusions” that “poisoned her mind” against the daughter she excluded from her Will, causing her to make allegations for which there was no rational basis. In circumstances where there could be any doubt as to a person’s mental capacity, we recommend obtaining a medical report.

Most commonly, when clients show some form of memory loss, possibly as a result of dementia, this makes us consider their capacity and we will give the most appropriate advice. The case of Clitheroe v Bond is a firm reminder that other health conditions may exist which may not give rise to memory loss but could still mean that they may be lacking capacity. It is recommended to keep records of the will instructions taken; these records may also help to protect your estate in the event of a challenge.

UPDATE: June 2021

Earlier this month, the England and Wales High Court rejected John Clitheroe’s request to use the Mental Capacity Act (MCA) 2005 instead of the traditional Banks v Goodfellow test to assess his late mother’s testamentary capacity.

The Judge stated that the Banks v Goodfellow (1870) test is still an appropriate means with which to assess the capacity of the individual to make a Will. Under the MCA 2005 – which formed the grounds of John Clitheroe’s appeal – a person ‘must be assumed’ to have capacity unless it is established otherwise, which would make it much harder to prove incapacity or delusion in the years after the event. However, this argument was rejected and the test for testamentary capacity is currently still based on the case of Banks v Goodfellow (1870).

Moving forwards, it will be interesting to see the impact of this decision on similar disputes. With rates of dementia sadly on the rise as we live longer, in addition to a more nuanced understanding of mental health and its impact on sound judgement, we are likely to see a steady increase in the number of disputes as a person’s capacity is subjected to the spotlight.

If you would like assistance with preparing your Will, please contact our experienced and friendly team to find out how we can help you. You can find our contact information by clicking here.