You made something we were dreading remarkably easy and your forthright and professional attitude was extremely impressive. Kevin Brown

0117 907 1002

Willing to give peace of mind

Patrick's news

Don’t leave it too late! (A Question of Capacity)

Over the last month, I seem to have been asked to help an unusually large number of clients suffering from terminal illnesses. One client, in particular had a cancer, and so did her husband. They both knew that they needed to revise their Wills, and over a period of months had discussed and agreed between them what they wanted, but had not taken action. Her health had then deteriorated suddenly and she was taken into hospital.  She was now home but with only a few days left to her, they needed to get new Wills completed in a rush. This is always a difficult time emotionally, for the individual herself and also for close family, and it creates special problems for the professional advisor who must ensure that the individual retains capacity and that decisions are their own, not the result of any undue influence from those around them. If these matters are not properly addressed, there will be far greater possibility of a Court declaring the Will invalid.

The first question must always be: does this person retain full capacity to create a Will? Do they fully understand the nature and effect of the Will they are to create? Do they fully appreciate the nature and extent of their assets? Are they able to bring to mind all those persons who might reasonably expect to benefit, and to make reasonable, rational decisions as to who will receive what? I must make an assessment through observation, conversation, and questioning. If there is time, and I consider it appropriate, a medical opinion will be obtained. If I am in doubt and a favourable medical opinion cannot be obtained, it will not be possible to create a legally valid Will.
I must also satisfy myself that my client, who will generally be in a weakened and vulnerable state, is not being pushed into doing something that they do not really want to do, particularly so if someone is to be excluded from benefit. Again, I will make an assessment and will arrange to speak to the client without any other person present, ensure their comprehension of the proposed Will and that it is being created of their free will.
Despite her very serious illness, my client in this instance was fully alert, able to provide instructions without difficulty, and I was fully satisfied as to her capacity and the lack of any coercion. It was very helpful that the issues had been discussed earlier and that my client and her family were all in agreement with the content of the proposed Will. As she was to be visited by her GP next day, it was arranged that he would provide a professional report and that assuming this was favourable, her Will would be signed immediately after that consultation. I duly prepared the documentation and all was completed within 24 hours.
Although, in this instance I was pleased to be able to carry out my clients’ instructions’, it will not always be possible to do so. A serious illness and medication prescribed will often cause drowsiness or confusion sufficient to prevent a legally valid Will being created. It is always very much better to address issues at a much earlier stage allowing sufficient time to consider advice, and for decisions to be made calmly and unhurriedly.

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Westbury Wills

57 Sylvan Way, Sea Mills, Bristol BS9 2LB United Kingdom
Phone: 0117 907 1002