Why would anyone thinking of having their Will prepared ever consider that they would have to involve their family doctor?

As solicitors we have a responsibility to our clients and their potential beneficiaries to ensure that they have “testamentary capacity”. To do this there is a set of questions we must ask ourselves when speaking with our clients.

Testamentary capacity means that a person has to know what a Will is, that they are making their Will and the effect of their decisions. They also need to have a rough estimate of the value of their estate at the time of making the Will as well as knowing who might be expecting to benefit from the Will. It is also important to ensure that there is no-one influencing the clients or any other external factors which may mean that the information they are giving us is not exactly what they would want to happen after their death.

Traditionally, these are the factors solicitors consider when speaking to clients about their Wills.

However, in 1975 Mr Justice Templeman described what is known as “The Golden Rule”.  This is not a legal rule but a rule of good practice. He stated that if a person has been ill, or is elderly then the Will should be witnessed or approved by a medical practitioner who has satisfied themselves of the capacity and understanding of the person making the Will.

On a day to day basis, we always need to provide clients with suitable advice and consider whether the idea of obtaining a medical opinion should be discussed with the clients whether those clients are 18 or 98. This is not an easy matter to bring up especially if the clients are elderly, or have been seriously ill. What we are trying to do is reduce the possibility of a disgruntled family member or friend successfully contesting the Will.

Sadly, we are seeing an increasing number of clients where there has been a breakdown in family relations, for many and varied reasons. In England and Wales we are extremely fortunate to have “freedom of testamentary disposition”, this means that we can leave our personal possessions and assets to whoever we want, this is not the case in many countries.

So, as solicitors we need to make sure that the Wills we prepare for our clients say what they want them to say, hopefully without too much jargon, and that any challenge brought by that disgruntled family member or friend is less likely to succeed. It is part of our responsibility to protect the wishes of our clients and their intended beneficiaries.

In conclusion, please do not be offended if a solicitor asks you to, or if they can, obtain a medical opinion on your capacity. It is to make sure that your personal possessions and assets end up where you want them to, with as few problems as possible for the people you have asked to look after your affairs when you have passed away.

If you would like any advice regarding making a will or would like to speak with one of our specialists, please click here to request a callback or send us a message.