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Michelle Gavin

Michelle Gavin

Partner & Head of Wills Trusts & Probate

Click here to view Michelle’s profile.

Charlotte Macalister

Charlotte Macalister

Associate - Wills, Trust & Probate

Click here to view Charlotte’s profile.

With a little bit of help from my Friends and Family…

We are often approached by family members or close friends of a person who would like to put their affairs into good order by making a Will or setting up a Lasting Power of Attorney.  Such a person is often trying to be helpful and simply get the ball rolling on behalf of a loved one.   As Solicitors we have a duty to make sure that everything is as it should be.

Let me introduce you to Peter and his elderly Auntie May.

Auntie May would like to make some changes to her existing Will and also make a Lasting Power of Attorney.  Her extremely helpful and supportive nephew, Peter gets in contact with us on her behalf in the first instance. Peter explains that he is not a blood relative of May but he has always called her Auntie as she was a close friend to his late mother. 

During the call, Peter explains to us that he will need to be present at the initial meeting with us as his Auntie May is hard of hearing and can sometimes be forgetful.   He tells us that he always helps her with her paperwork and her finances as sometimes she can find it all a bit overwhelming.   

Peter feels a little put out when we explain to him that he cannot be present throughout the entire meeting. He explains that he is just trying to be helpful and he is the closest person to Auntie May and she would want him to be present.  

When a client wishes to make a Will or Lasting Power of Attorney, it is vital that we see them on their own to take instructions so that we can ascertain if the person is in a position to give quality instructions (i.e. that they have capacity) and is giving those instructions of their own free will (i.e. that they are not being pressured, coerced or unduly influenced).  

Peter may have genuine intentions but we will need to see Auntie May alone to ensure we are satisfied that she is able to give quality instructions to us.  

In this context Auntie May is our client and the person responsible for paying our fees.  Sometimes a family member may feel that they know what is best for a loved one and can take a strong stance to encourage them down a certain path, so to speak.  

Testamentary Capacity – The Capacity Test to Make a Will

‘Testamentary Capacity’ is the legal term used to describe a person’s legal and mental ability to make or alter a valid Will. If Auntie May lacks testamentary capacity at the time that the Will is executed, the Will is invalid. 

Auntie May must have the requisite testamentary capacity to amend her Will at the time of signing. She must be able to;

  1. Understand the nature of making the Will and its effects (i.e. What is a Will and what does it do?);
  2. Understand the extent of the property to which she is disposing of (i.e. What do you own?);
  3. Be aware of the persons for whom she would usually be expected to provide (even if they choose not to) and be free from any delusion of the mind that would cause her reason not to benefit those people (i.e. Who are your family members?)

By meeting with Auntie May alone, we can discuss any concerns or queries she has including any sensitive information such as financial matters or family politics that she might not otherwise feel comfortable discussing. Auntie May could potentially tell us about a secret child that Peter does not know anything about or that she never actually divorced her husband although they have been separated for many years.  It may even transpire that Auntie May is only coming to see us because Peter keeps nagging her to make a Will and Lasting Power of Attorney and that she doesn’t actually want to do either!

In order to make a valid Will then it must be signed by Auntie May in the presence of two independent witnesses.

Mental Capacity to make a Lasting Power of Attorney

The Mental Capacity Act 2005 provides that in order for Auntie May to have the capacity to make a Lasting Power of Attorney she must be able to:

  1. Understand the relevant information to the decision;
  2. Retain that information;
  3. Use or weigh that information as part of the process of making the decision;, or 
  4. To communicate that decision 

Auntie May will need to understand what a Lasting Power of Attorney is, why she wants to make it, who she is appointing as her Attorney, why she has chosen that person to be appointed and what powers is she giving to her Attorney.

Memory Issues – ‘Auntie May can sometimes be forgetful’

Peter’s comment that Auntie May can sometimes be forgetful is a concern as it could signal an underlying serious problem, such as early onset dementia.  Memory issues are often a prompt for family members to encourage a loved one to set up a Power of Attorney.

If we met with Auntie May and Peter together she could be embarrassed that her memory is not as good as it once was and to avoid being exposed let Peter lead the meeting.

In this situation it is good practice to involve an independent expert to carry out an assessment to ensure that Auntie May is in a position to give quality instructions to us.  This could be her GP or Social Worker or consultant or a specialist company that provide this service (we can signpost you to one of these organisations).  Charges would apply.  The outcome of this independent assessment should be carefully recorded in case it is ever called into question in the future.

Best practice would be to arrange for the expert to act as witness to the Will or as a Lasting Power of Attorney Certificate Provider to give greater weight.

If it were to transpire that Auntie May did not have the requisite capacity to be able to make a Lasting Power of Attorney then an application would need to be made to the Court of Protection for a Deputyship Order to appoint a Deputy to manage her affairs.  As far as the Will is concerned it is possible to make an application to the Court of Protection for a ‘Statutory Will’ to be made on her behalf.

Taking steps to do things correctly will help to avoid challenges to the legal documentation later down the line.

For individual advice and assistance contact our Wills, Probate and Trusts Team to find out how we can help.