Your will is an essential legal document to help protect your wishes for your estate and, in some cases, funeral plans after you’ve died. Unfortunately, there is a common misconception that once you’ve passed, your estate and assets will automatically go to your family and loved ones. Still, without one, the law will decide how your estate will be handled.
Once a loved one has died, there is nothing worse than having their will challenged. Unfortunately, wills can often have their validity questioned, citing that the deceased family member lacked the mental capacity to create the will, or that the deceased acted under duress or the influence at the time the will was drafted.
What is meant by mental capacity?
When an individual wants to create a will, there are a few requirements that they must be able to meet before going forward with the will writing process. First, they must be over eighteen and have what’s called Testamentary Capacity. This is the capacity which relates specifically to their will.
The way to determine whether an individual meets Testamentary Capacity is through a test set out in the Banks v Goodfellow Case in 1870. This states that a testator must:
- Understand the nature of the will and the effects it will have
- Understand the extent of their property and assets
- Be able to comprehend and consider claims to their estate
- Not having a disorder of the mind takes away their sense of right.
If someone was to develop dementia or Alzheimer’s and they do not already have a will in place, it isn’t too late for them to create one. In some cases, it may be appropriate for a trusted individual to apply to the Court of Protection, so they can make a will on behalf of the person who has lost capacity. This is called a Statutory Will, and under section 18(1) of the Mental Capacity Act 2005, the Court of Protection can authorise a will.
The Court of Protection is a specialised court designed to protect individuals who cannot make their own decisions in relation to finance and welfare.
Steps you can take to avoid challenges
A challenge to the capacity of an individual is likely to happen after they have died and it can be hard to prove that they passed the Testamentary Capacity test. However, when preparing your own will there are some things that you can put into place to ensure that your wishes can’t be challenged once you’ve passed.
- Avoid using homemade will kits – while these might seem like the easiest and cheapest options for creating a will, it does leave gaps that can be challenged after you’ve died. It’s best to speak to a professional who specialises in wills and probate.
- Sign your will in the presence of a professional – here, you will have at least one witness who is professionally qualified in the steps needed to validly sign a will, and they are traceable in the event that there is ever an issue.
- Leave a private letter with your will – this letter can outline your reasons for the decisions you’ve made in your will and let your loved ones know your intentions behind your decisions.
- Get a medical opinion from your GP or specialist – this can help demonstrate your testamentary capacity and prove that you do not have any illnesses that could be considered to interfere with your thought processes and mental state.
All Best Foundation members are trusted experts in will writing. In addition, our client guarantee ensures the highest standard of work to mitigate instances of contentious probate, ensuring that your loved ones are not placed under undue stress while they go through the grieving process.
