Whilst wills being disputed is not uncommon, it is important this is done ethically. One case recently covered in the media focused on a family member trying to persuade someone to change their will, despite that person suffering from dementia.
As professional advisers, it is our responsibility to ensure that we are as certain as we can be that the person instructing us to make a will (the client) has the capacity and mental wellbeing to do so – but we are not medically trained.
We therefore conduct basic checks including asking the client what day it is, who their family are and what the estate included in the will comprises of. We will also talk to the client about what they want to do with their estate – such as who might they be considering as a beneficiary? Why do they intend to leave someone out?
Equally as important, we will look at the relationship of anyone who is present at the will meeting with the client – it may be a child, a partner, a friend. We’ll look to see if they are answering questions on behalf of the client we’re meeting with. Do they look to them for reassurance every time they give an answer to a question we’re asking?
This is how we decide whether we think the ideas are that of the client, or whether they are being encouraged or manipulated into taking decisions that are not their own. In some circumstances, we may ask the companion to leave the room to ensure their influence is limited if we think they’re administering some control over what the client is saying or how they are acting.
We will ask about the client’s health too, in order to gauge whether they are on any medication that might lead to their thinking not being as clear as it could be. If we are not sure about the state of the client’s health and any potential issues clouding their judgment, we will suggest that they obtain a medical report. This is not because we are saying they are incapable of taking those decisions, or that we think they are more unwell than they are letting on – but it is a protective step to ensure we’re doing all we can to provide the client with the best advice for them, and them alone.
A will should reflect the client’s wishes, and although the client will hope that everyone would respect those wishes, some may feel that they should make a claim if they have been omitted. A claim that the client was incapable of making their own mind up can be defeated if there is contemporaneous medical evidence to say that they were capable. It protects the client as the author of the will and their beneficiaries i.e., those they intend to benefit.
Our intention then is to ensure that the client’s wishes are followed after their death and therefore any request for medical evidence is to ensure as much as we can that this happens and that the decisions made in their will, are theirs.