by Rosemarie Close, Contentious Probate Solicitor
Why make a Will now?
A lot of people are told regularly that they need to make a Will, by friends and family (and their lawyers!), and the pressure to do so becomes greater with age and illness. But why make a Will?
Having a Will makes life a lot easier for your family after you’ve gone. While you may be happy for your Estate to pass under the intestacy rules, this will force your family to provide a full family tree and may cause significant delay in distribution of your Estate. It can also be unpredictable where you are not a member of a nuclear family with 2.4 children!
You may, like many, be wondering why make a Will now when you are feeling spritely and physically fabulous?
A strong reason for this is the need for a person to have capacity when a Will is made, as determined under the Banks v Goodfellow test.
What is the Banks v Goodfellow test?
Essentially it means you must be able to understand:
- the extent and nature of your Estate;
- the effect of making a Will and its effects;
- the claims that may be may against the Estate which you ought to consider;
- have no particular disorder of the mind that might effect your sense of right and wrong or the decisions made in respect of disposing of your Estate.
I have paraphrased because the test was written in 1870! Hasn’t the test for capacity been updated since then?
Yes, the test of capacity in respect of many matters is now found in the Mental Capacity Act 2005, which, as you can imagine, uses more modern language and importantly assumes capacity unless it is proven otherwise. The basic test there is that the person in question must be able to understand the information relevant to the decision they are making and the likely consequences. This is the test that would apply if you were to make Lasting Powers of Attorney to appoint people to assist you if something were to happen in your lifetime that meant you could not make decisions or manage finances alone.
In the recent case of Clitheroe v Bond the court confirmed that that this modern test, and importantly the assumption of capacity, does not apply to making a Will.
This means that capacity has to be proven if anyone raises any issue with your Will when it comes into effect and evidence is needed.
For this reason your lawyer will advise you to obtain a medical report confirming your capacity from your GP or another medical professional if:
- you have had any physical ill health that may have had an impact on your memory, speech, understanding or stamina;
- you have suffered from mental health issues of any kind;
- you have had a recent bereavement or trauma;
- you are leaving a close relative or dependant out of your Will; or
- you are over 70.
In order to ensure that the report is sufficient your lawyer needs to set out the test in full so as to help the doctor consider their (modern) medical knowledge within the (archaic) legal test. This additional work means further cost involved in preparing your Will. In addition the medical professional will usually charge for preparing the report.
As a lawyer dealing with contentious probate, I know that failing to take proper steps to establish capacity can cause additional stress for your family at a very difficult time as well as incurring significant costs that may have to be met by your Estate, reducing the amount available to those you wish to benefit.
With everything that has happened over the last year, it is clearer than ever that we never know what is around the corner so make your Will now, while you are able.
This article is for information purposes only and does not amount to professional advice. If the issues raised effect you then professional legal advice should be sought. If you need advice regarding making a Will or putting in place Lasting Powers of Attorney please contact one of our Private Client specialists who would be pleased to help. Make an enquiry here with our specialist Will lawyers in our East Sussex branches now.