Mental health and making a will

Many people nowadays overlook the importance of instructing lawyers to draft their wills. Why would you pay a lawyer to write a will when you can write one yourself for free?

As demonstrated by the famous case of Hodson v Barnes, a will can even be written on an egg, so why would you instruct a lawyer to write a will for you? Surprising to many, there is much more to will writing than just the drafting. You may be aware that nowadays, it is not uncommon to read in the local paper that a disappointed beneficiary is challenging a will. Sometimes, they do so under the inheritance family provision legislation, but often a claimant will challenge the validity of the will for one of two reasons, alleging either:

• That the deceased lacked the necessary testamentary capacity to make a will or codicil when they signed it; or
• That the deceased was acting under duress or undue influence

If you were to seek professional legal advice, the lawyer would need to be satisfied that you had the necessary testamentary capacity to make the will. The leading case for capacity is Banks v Goodfellow which states that testators must:

• Understand the nature of making a will and its effects;
• Understand the extent of the property being disposed of;
• Be able to comprehend and appreciate the claims to which they ought to give effect; and
• Have no disorder of the mind which affects the terms of the will.

The lawyer will record the details of the meeting through the use of attendance notes. In the notes they would confirm that they had met with the client alone, so as to mitigate any claims of duress or undue influence and that the client had the necessary mental capacity to sign the will. These attendance notes are then stored in the firm’s archives and can be extremely useful in the event of a claim.

If, during the meeting, the lawyer has any doubt that a testator does not meet the requirements under Banks v Goodfellow, the lawyer will follow ‘the golden rule’ of practice. The lawyer will request a doctor’s note from the testator’s GP to confirm that they are of sound mind and have the capacity to sign a will. Again, this evidence would rebut any claim of a lack of testamentary capacity.

Here at Birkett Long, we are experienced in dealing with clients whose wills might be questioned for lack of capacity. We have a whole team dedicated to deal with inheritance and will disputes. In many cases, these claims relate to homemade wills that can be easily challenged. If you have a homemade will that needs reviewing or have any queries relating to making or amending your will, we offer a free consultation to set you on the right track. If you would like to take advantage of this service, please contact Leah on [email protected]