Capacity has always been one of the fundamental considerations when drafting a Will. It’s a very sensitive and vital document, which is why lawyers and legal professionals abide by the ‘golden rule’ when taking instructions for and drafting a Will.
If you’re worried about a loved one’s capacity, get in touch today.
The so-called ‘golden rules’ confirm some vital criteria when it comes to making a Will.
They make sure that the person making the Will:
- understands the nature of the Will and its effect,
- understands the extent of the property which they are passing on under the Will,
- is aware of the people who the person making the Will would ordinarily leave their estate to,
- and is free from any delusion of the mind that would cause them reason not to benefit those people.
Further laws like the Mental Capacity Act 2005 specify that a person is considered lacking capacity in relation to something if at the time the person is ‘unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’ This is regardless of whether the impairment or disturbance is permanent or temporary.
The law is also clear about the fact that a lack of capacity cannot be established merely by reference to—
‘(a)a person's age or appearance, or
(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.’
As you can imagine, establishing whether someone has, or had, capacity to write a Will is a very sensitive issue. For some, the Mental Capacity Act caused a great deal of confusion about what the right test for capacity is.
Thankfully, however, a recent case shed some light on the situation. The Court was asked to assess whether a woman’s delusions had caused her to change her Will, and stated that “for a delusion to exist, the relevant false belief must not be a simple mistake which could be corrected. It must be irrational and fixed in nature.” This conclusion has clarified several things, particularly by specifying what a delusion is.
Cases like these can be common, with families being concerned about their loved ones’ capacity. Some families are also worried that their loved ones have ‘been poisoned against them.’
These emotive times require attention to detail and expertise, something which the court itself recommends, stating that the right approach takes into account ‘the nature of the belief, the circumstances in which it arose and whether there was any evidential basis for it.’ As you can see, capacity is a very complex matter and requires a great deal of attention.
A legal professional can look at all the circumstances and make an objective decision as to the concerns raised together with a careful analysis of the relevant medical records.
When considering a capacity dispute it is important to seek expert advice from a legal professional who can help you know where you stand.
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