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It is common for solicitors to be instructed to assist with will-making for older clients who are keen to put their affairs in order, where those clients may also be suffering from dementia or other vascular diseases which can affect their mental capacity. A solicitor who fails to properly assess the testator’s capacity to make a will, and where the validity of that will is later challenged, could be liable to the disappointed beneficiaries and/or the estate for the costs related to setting aside the disputed will.
A client must have capacity to give instructions and make their will. This is known as ‘testamentary capacity’. Testamentary capacity is not an absolute. A person may be capable of understanding their will on one day but not the next, as capacity can vary from day to day or even hour to hour. A person must have capacity at the relevant time – so simply confirming capacity at the time of obtaining instructions is not sufficient. The solicitor should take steps to satisfy themselves of their client’s capacity and depending on the circumstances, it may be appropriate for the solicitor to recommend obtaining an independent assessment by a medical practitioner to confirm capacity.
Where capacity may be an issue, solicitors should follow the ‘Golden Rule’, which recommends that:
If these steps are not followed, and it later turns out that the testator did not have the required testamentary capacity to make their will, there may be a negligence claim against the solicitor.
With elderly and vulnerable clients, solicitors also need to properly consider potential problems around undue influence and reflect on whether there is any possibility that the client is being coerced to make a will in particular terms. The solicitor has a duty to try to establish whether the client is acting freely, without coercion and with a full understanding of the transaction.
Each case will be fact specific, but solicitors should be particularly alert to the possibility of undue influence in the following situations:
In cases where there are allegations of lack of capacity or undue influence, the most likely claim in the first instance will be to challenge the will. Decisions in recent cases point strongly towards wills usually being found valid where they have been prepared by a solicitor and the solicitor has followed the appropriate processes. However, if those processes have not been followed – for example there has been a failure to consider the testator’s capacity – and the will is set aside as a result, then in those circumstances the parties who lose out because of the will being set aside may well have a claim against the solicitor.
If you are a beneficiary or executor of an estate and would like advice around a possible professional negligence claim relating to a will, please contact a member of our team. You may also like to read our Wills, Trusts and Inheritance FAQs or Inheritance blogs for more information.
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