Old age and capacity: how to protect your will from challenge
Making a will is an important piece of life admin. Making a will is the only way to make sure that your wishes are carried out when you die: whether that is to ensure that your spouse and children are looked after, to leave a gift to people or charities closest to you, to ensure that your estate is split fairly bearing in mind gifts you’ve made during your lifetime, or to disinherit someone that might otherwise get a share of your estate, but whom you do not want to benefit from your wealth after you’ve died.
However, there are lots of ways that a will can be challenged by someone who feels that they’ve been left out unfairly, or if a gift (e.g. to a close friend or charity) is a surprise or somehow offends the other beneficiaries. When this happens, a jilted beneficiary can apply to the courts to ask for a share of your estate, even if you didn’t want that to happen. One of the most common challenges is by saying that you didn’t have “Mental Capacity” to understand what you were doing when you wrote the will. Mental Capacity is a fairly nebulous phrase, and it is not clearly defined at law. It does not, for example, follow the statutory definition set out in the Mental Capacity Act of 2005, or any of the other pieces of mental health legislation.
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Photo credit: Esther Ann
When it comes to making a will, courts will look at all sorts of things over and above any diagnosis of any degenerative disease or mental health issues. It is perfectly possible for a will of someone with a diagnosis of e.g. Alzheimer’s Disease to be deemed to be valid by the courts. Likewise, someone with a clean bill of health could have their will successfully challenged by someone written out of their will.
What do the courts look at?
The courts will weigh the facts available to them and come to a decision. The good news is that the principle that someone should have the right to determine their own affairs as they see fit is given a lot of weight. The courts recognise that in a world where the elderly can be side-lined and be left without power or influence, the exercise of discretion when making a will can be one of the few areas where influence can be exerted.
A court will want to be reasonably satisfied of of the following (from the case “Banks v Goodfellow”):
- That the person making the will understood they were making a will;
- They know (roughly) what assets form their estate (property, investments, cash etc);
- They know who might expect to inherit (even if they don’t all make it into the will);
- There is no “…disorder of the mind or insane delusions”.
The final point in particular can be open to interpretation. It does not follow statutory guidance – rather – it is intended to reflect the reality of the situation. If someone suffers from a mentally degenerative disease, you might think that they can’t make a will. However, it is often the case that someone can have “good days” and “bad days”. A will made on a good day can be perfectly well executed. The steps you can take to protect the will maker’s wishes can be found below.
The second set of rules that the courts follow (from the case Parker v Felgate) are:
- The person had testamentary capacity when they gave instructions; and
- They remember giving instructions and understand that the will has been drafted in accordance with their instructions.
This could be seen to be re-stating the rule in Banks v Goodfellow, but it gives rise to subtly different tests.
What can I do/ The Golden Rule.
The above two cases give indications of what you can do to protect the wishes in your will, especially when making a will face to face with a solicitor. You should make sure that your advisor takes detailed notes of your wishes (or you keep a diary setting out all of the necessary information, that can be shown to be contemporaneous with your will).
However, above all, the best thing you can do is follow the “Golden Rule” as set out in Kenward v Adams. This says that:
“…in the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding…”
To recap:
In order to best protect your wishes in a will, do the following:
(a) Make a will in front of a qualified solicitor, or, if this is not possible – make sure you keep a clear note showing that you know the tests in Banks v Goodfellow, i.e.
- You understand you are making a will;
- You know (roughly) what assets form your estate (property, investments, cash etc);
- You know who might expect to inherit (even if they don’t all make it into your will);
- You have no “…disorder of the mind or insane delusions” (see the Golden Rule for this).
(b) Make it clear that you have given the instructions yourself and you know the legal effect of a will; and
(c) Make sure a doctor or other qualified medical practitioner is a witness to your will, and also make sure they take a contemporaneous note saying that you had testamentary capacity and keep that with their professional files (and let you have a copy).
Be aware, however, that no approach is bulletproof. A court can hold a will to be valid even if none of the above steps were taken. Likewise, you could have done everything perfectly, and the courts could hold your will invalid. The courts jealously guard their powers of discretion. However, by doing everything right as set out above, you reduce the chance of a successful challenge. You can only ever control the controllable – and give your wishes the very best chance.
Death, taxes and admin: what to do when someone dies.
The period following the death of a loved one is fraught. There are a number of legal and administrative steps that need to be carried out which can add to the pressure. Failure to do these things promptly and properly could lead to increased strife, cost, and problems at a later date. You should be able to get ample help and guidance from the registrars at your Local Authority or professional advisors such as solicitors. An outline of what needs doing can be found below. The list is non-exhaustive and you should follow the detailed guidance available from your probate solicitor, local authority and other professional guidance.
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Photo credit: Chris Buckwald
Register the death:
A death should be registered within 5 days. The Registrar at the local authority needs to be told by either a relative, the person who is organising the funeral or someone who was present when the death occurred. When you register the death you can get a death certificate along with copies. It is usually a good idea to get plenty of copies as some institutions such as banks/ building societies will want to see an original from the Registrar (and not a photocopy). Having multiple copies can speed things up.
Find the will:
As mentioned in our previous article: https://makeawillonline.co.uk/blog/where-there-s-no-will if there is a will, it is imperative to find and produce the original. If you can’t find the original there is a presumption that the deceased destroyed their will with the intention to revoke the will.
Pay for the funeral:
There are three main options when it comes to paying for a funeral: insurance, payment from the funds of the deceased person or payment from elsewhere (friends/ family/ public health). Bear in mind that the funeral will almost always happen before probate is granted, and usually within a few weeks, and sometimes before the original will is located.
You should always check for funeral insurance which can pay for some or all of the funeral expenses and possibly the wake too. The main companies to bear in mind when searching can be found here: https://www.which.co.uk/money/insurance/funeral-plans/funeral-plans-reviewed-a4uzt4g0d0sf.
Secondly, whether you’ve found the original will or not, many banks are willing to release funds for a funeral upon the presentation of a death certificate.
If neither of the above options are available then either friends and family can fund the funeral, or alternatively if you contact your local authority, a basic public health funeral can be organised.
Insure the home:
Ensure that the insurers know about the death, especially if the deceased was the only occupant of the property. Listen to what the recommendations of the insurers are. An empty property may require additional steps taken out such as periodic visits or additional security.
Payments:
When the bank learns of the death it will freeze the account and payments will cease. Anyone receiving regular payments or direct debits from the deceased should be informed so they don’t misread the situation and think that the deceased has defaulted on payment.
The gas, electric, water and any other utilities will need final meter readings and they’ll send a closing bill. As with the funeral expenses, the bank will usually unfreeze the account to allow these to be paid.
Grant of probate/ letters of administration:
Once the value of the estate of the deceased has been finalised with the assets and debts at the time of death fully understood and HMRC has been fully informed then the executors can apply to the courts for a Grant of Probate (or Letters of Administration if there is no will). The process of applying for probate is technical and the consequences of getting any of the calculations are serious. Often executors employ solicitors or accountants to advise on part or all of the process. A list of solicitors can be found here: http://solicitors.lawsociety.org.uk.
Sell property:
If the executors need to, and if the will allows it then the property can be sold and the proceeds used to pay to the beneficiaries.
Pay IHT:
If the estate is subject to inheritance tax (current guidance on the rates here: https://www.gov.uk/inheritance-tax) you will need to ensure that this is promptly paid following the grant of probate. If it is not possible to pay this immediately (e.g. if the estate has fixed assets that can’t be sold quickly) then it is often possible to get a loan to cover this liability. You should speak with a professional for advice on this subject.
