This blog outlines the essential affairs to get in order, offering peace of mind for you and your loved ones.

Why It Is Important to Plan Now

Although there is no cure for dementia yet, some treatments, depending on the type of dementia, may help slow progression or manage symptoms. Nevertheless, dementia remains a progressive condition that increasingly impacts memory and cognition over time. It is highly likely that at some point you may lose the mental capacity to make key decisions about your health, welfare or finances.

Planning ahead and formalising your preferences helps ensure your wishes are respected wherever possible. Without firm plans regarding health, welfare or financial affairs, you may be at greater risk of crisis situations, family disagreement, or costly and complex court applications.

At Thornton & Lee, we are specialist providers of mental capacity assessments, and all our assessors have extensive experience supporting those with a dementia diagnosis through the assessment process.

Sorting Out Your Will

Making a will, or updating your current will, is one of the most important legal matters to consider after a new dementia diagnosis. You should ensure your will still reflects your wishes, that there have been no significant changes to your assets, marital status, children or dependants, and that you remain satisfied with your chosen executors, beneficiaries, and the division of your estate.

Can I Make a Will If I Have Dementia?

Yes. You can make a new will or change an existing one despite a dementia diagnosis, as long as you still have testamentary capacity. If your solicitor has any doubts, they might refer you to Thornton & Lee for a formal testamentary capacity assessment.

A dementia diagnosis does not automatically mean you lack testamentary capacity, but it can make your estate more vulnerable to legal challenge by individuals you have excluded from your will. For this reason, your solicitor may recommend a testamentary capacity assessment even if they have no concerns about your capacity. This ensures robust professional evidence is available via a testamentary mental capacity report, helping reduce the likelihood of a successful legal challenge to your estate after your death.

Set Up Lasting Powers of Attorney (LPAs)

In England and Wales, there are two main types of LPA:

• Property and Finance LPA – covers decisions about money and property, including banking, paying bills, and buying or selling property.
• Health and Welfare LPA – covers decisions about health, care, medical treatment, life-sustaining treatment (if you choose), where you live, and day-to-day care.

An LPA allows you, the donor, to choose trusted individuals (attorneys) to make decisions in your best interests should you lose the mental capacity to do so.

Only those with mental capacity can execute new LPAs. Once capacity is lost, the only option for someone else to manage your property and financial affairs is a Court of Protection application for a deputyship, which is more time-consuming and costly. Without a Health and Welfare LPA, decisions about your care and living arrangements, such as entering a care home, may fall to the local authority instead.

When choosing attorneys, it is vital to select individuals you trust to act in your best interests and uphold your wishes. You may wish to appoint two or more attorneys in case circumstances change for your appointed attorney. Some people choose professional attorneys, such as solicitors or financial advisors, if they don’t have a suitable family member or friend to act.  All LPAs must be registered with the Office of the Public Guardian before they can be used.

If you already have LPAs in place, review them after receiving a dementia diagnosis to ensure they still reflect your wishes and preferred attorneys. Once LPAs are executed, they should be periodically reviewed as circumstances evolve to ensure they still reflect your wishes and who you want to act.

If your memory has already been significantly affected, your solicitor may question whether you still have the capacity to execute new LPAs and whether a deputyship application may be more appropriate. At Thornton & Lee, we work with many individuals with progressed dementia who still hope to execute an LPA. Our LPA mental capacity assessment service includes completion of the COP3 form, the specialist assessment required for a deputyship application, at no extra charge if we cannot conclude you have capacity to execute a new LPA on the day, despite our very best efforts.

Having the Conversation: Your Wishes, Values and Future Care

It is essential to talk to your trusted people, such as your family, friends or attorneys, about your wishes. If you have executed LPAs, arrange a meeting with your attorneys and close family or friends to discuss:

• your preferences for future care
• your living arrangements
• medical treatments you would accept or decline
• views on life-sustaining treatment
• whether you wish to remain at home for as long as possible or would consider a care home

Making your wishes clear reduces the likelihood that they will be overlooked and helps avoid conflict or uncertainty among those trying to act in your best interests, once you have lost mental capacity.

It is also wise to write down your preferences regarding health, care or accommodation decisions. You could record a short video or audio statement about the things that matter to you, create a “living will”, or compose an advanced statement expressing how you wish to be treated.

If Capacity Is Already Lost: Deputyship and Help from Thornton & Lee

If your dementia has progressed to the point that you no longer have the capacity to make LPAs, an application to the Court of Protection will be required to appoint a deputy. This process is slower and more expensive than making LPAs, but it is essential to ensure someone has the legal authority to act in your best interests.

Without someone legally authorised to manage your property and financial affairs, your bank accounts could be frozen, bills may go unpaid, and if you need to move into a care home and fund this by selling your property, nobody would have the authority to sell it for you.

At Thornton & Lee, we undertake COP3 assessments daily. Our professional and skilled assessors are experts in understanding the Court of Protection’s requirements. All assessments are approached with the utmost kindness and respect.

Other Practical Matters to Review

You should also review:

• pensions
• insurance policies
• trusts and investments
• bank mandates and online banking access
• whether your attorneys know what is in place and how to access it

Consider advanced care planning and discussions with your GP or healthcare team about treatments you may wish to accept or decline in the future.

You may wish to contact your local authority to request a Care Act assessment to explore whether a care package could support you to stay safe and well at home for as long as possible. As your dementia progresses, you may be entitled to benefits such as Attendance Allowance, and any informal carers may also be entitled to Carer’s Allowance.

Being organised is key. Creating a folder in your home containing all important documents and contact details, such as your solicitor, GP, social worker and attorneys, can be invaluable for both your own independence and for those supporting you.

How Thornton & Lee Can Help

If you have a new dementia diagnosis and are considering executing a new will, revising your current will, or creating new LPAs, the friendly and professional team at Thornton & Lee can support you with any questions about mental capacity assessments.

To find the right mental capacity assessment option for your circumstances, please fill out our contact form here or call us today, and a member of our team will be in touch promptly to discuss your needs.

The post What Affairs to Get in Order After a Diagnosis of Dementia appeared first on Thornton & Lee.

In England and Wales, the law underpinning how a Will must be executed is the Wills Act (1837). It is fascinating how a piece of legislation, 188 years old, still governs the rules and circumstances around making a Will legally compliant. The Wills Act (1837) sets out some legal criteria which must be followed in order to correctly and legally execute a new Will as a testator, including:

• Only a person 18 years of age or over can execute a Will.

• The testator must have testamentary capacity, eg they must be of sound mind, understand what a Will is and when it comes into effect, the extent of their estate, and how they wish to divide this among their chosen beneficiaries. 

• All Wills must be made in writing. 

• The written Will must be signed by the testator personally. 

• Two independent witnesses must observe the testator sign the Will before both witnessing the Will themselves with signatories. These two witnesses cannot be anyone set to benefit in the Will to exclude any suspicion of undue influence being placed upon the testator. 

Under the Wills Act (1837), if any of the above criteria is not met, then the Will can be challenged and scrutinised in Court, and it could ultimately be concluded that the Will is invalid. 

What happens if a person dies without a valid Will

Any person dying without a valid Will, either because the above legal criteria of the Wills Act (1837) was not followed correctly or because they failed to make a Will, would then be subject to their estate being distributed in line with intestacy rules.

Intestacy rules provide a framework for how and to whom the deceased’s estate should be distributed, which can work very well in some cases, especially if the testator leaves behind a widow who is still caring for dependents, for example. However, there are also occasions where intestacy rules prove unpopular or controversial, particularly in cases where a legally married spouse may benefit despite a long term of estrangement prior to the person’s death. Whereas a long-term partner and cohabitee of the person who has died does not set to inherit anything under intestacy rules. Intestacy rules do not take into account the quality, closeness or previous commitment of any particular relationship to the person who has died; they simply provide a hierarchy of who will benefit based on marriage and family line. 

Why is there a proposal to update the Wills Act (1837)

Given the length of time since the Wills Act (1837) and the associated changes in society, the Law Commission of England and Wales has been drafting a proposed reform of the Wills Act (1837). Reasons for this include that modern families do not always have wedded partners and modern families are increasingly blended in many wonderful ways. Advances in technology now allow for the use of electronic signatures in many other sectors, and a rise in reported predatory marriages in which a perpetrator will target an elderly person and pursue them for marriage, knowing that marriage will revoke any previous Will and make them the primary beneficiary.

Under present law, the testator and witness signatures must be done in person, and virtual witnessing is not permitted, nor is any use of an electronic signature by the testator or witnesses. There was a small window of time during Covid-19 whereby wills could be remotely witnessed, and the notion continues to provoke much controversy. Some applaud the increased convenience virtual witnessing could provide, while critics continue to speculate that the virtual/electronic testator and witness signatories may lead to an increase in covert coercion of testators by beneficiaries who are then able to hide behind computer screens. 

Critics also point out that the continued use of the Banks versus Goodfellow test (1870) for assessing testamentary capacity is less clear and robust than the Mental Capacity Act (2005). The Mental Capacity Act (2005) became statutory legislation in 2005 with its associated Code of Practice for assessing mental capacity in England and Wales, setting a standard of best practice and guidelines for mental capacity assessments.

The Mental Capacity Act (2005) sets out a standardised framework for assessing mental capacity for any decision based on the criteria that the person must understand, retain, weigh, and communicate the relevant information for the decision to be made. The Mental Capacity Act (2005) allows for a conclusion of incapacity for any particular decision if the person cannot understand, retain, weigh, or communicate the relevant information due to an impairment of or disturbance in the mind or brain. In contrast, the Banks versus Goodfellow test dates back to a Court case in 1870, lacking a robust and standardised Code of Practice for assessors, unlike the Mental Capacity Act (2005).

What is the Law Commission of England and Wales proposing to change when reforming the Wills Act 1837? 

• Removal of automatic revocation of current Will if marrying or entering into a Civil Partnership. To reduce the threat of predatory marriages, the Law Commission is proposing that getting married will no longer revoke an existing Will. If this modernisation were adopted into law, it would be the case that there would no longer be an automatic revocation of the current Will in favour of the new spouse as beneficiary upon marriage.  
  
• Electronic Wills: Electronic Wills to be introduced in line with advances in technology and electronic signatures. This means it could be possible for a testator to execute and sign their Will, or for witnesses to now sign digitally. 
  
• Lowering the age to execute a Will to 16 years. Reducing the legal age to make a Will from 18 years of age to 16 years of age. This takes into account that some teenagers may be suitably mature enough to execute a Will from 16 years of age.
  
• Standardising the legal test for mental capacity to execute a Will: Changing the legal test for mental capacity to execute a Will from the common law test of Banks v Goodfellow (1870) to the Mental Capacity Act (2005) to line up with how mental capacity is assessed in other legal areas. 
  
• Enhancing protection for testators subject to undue influence: Increased safeguards around identifying and remedying actions where undue influence upon a testator is thought to have prejudiced how the testator executed their Will. 
  
• Clarity of who can witness a Will to minimise risk of conflicts of interest: New guidelines with stricter control on who can be a witness to a Will, such as not allowing the cohabitee of a beneficiary in the Will to act as a witness, thus reducing the possibility of a conflict of interests when acting in the role of witness to a Will. 
  
• Pathways for having an informal Will legally recognised: Discretionary legal powers for a testator’s wishes for the distribution of their estate upon their death in cases where there is robust evidence of the testator’s intentions, but not all the current statutory criteria have been stringently followed to create a ‘formal Will’.

What does this mean for mental capacity assessments to enter into a new Will? 

It’s important to note that the Wills Reform recommendation made by the Law Commission of England and Wales is not legislation, nor does it change any of the current law and guidelines around executing a Will or assessing testamentary capacity at the present time. The final report will now need to be considered by Parliament, including the House of Commons and the House of Lords, before finally receiving Royal Assent and being implemented into law and practice.

For now, business continues to run as usual, following the Wills Act (1837) and utilising the common law test Banks versus Goodfellow, for all those drafting Wills on behalf of a testator or those completing mental capacity assessments with those wishing to enter into a new Will. 

At Thornton & Lee, we always approach all our assessments using best practice to work with and get the best out of the person being assessed. Whilst we will continue to use the correct test of Banks versus Goodfellow (1870) when completing testamentary assessments, you can rest assured that we always ensure we have an excellent grasp of the person’s unique needs and circumstances ahead of the appointment.

Our skilled and experienced assessors will professionally place the person being assessed at ease, so you know you are in safe and reassuring hands. If you are interested in discussing instructing us for a testamentary capacity assessment, fill out our contact form here and a friendly member of the team will promptly be in touch to discuss your assessment needs.

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A Will: Is a legal document that you create which sets out instructions for who will inherit your estate and what should happen when you die.

Testator: Is the person who the Will is executed for, the person to whom the Will belongs.

An estate: Is everything you own which might include money, property or possessions.

An executor: Is a person or people named in your Will who sort out your estate, in line with your expressed wishes in your Will after you have died.

A beneficiary: Is the people or organisation you’ve chosen to name in your Will to inherit something or your estate after you have died.

Why has my solicitor suggested I need a testamentary capacity assessment? 

As a consequence of the Inheritance (Provision for Families and Dependents) Act 1975, legally those within your network who feel that they might have been unfairly excluded from your Will could have justification to apply to the Court to contest your Will after your death and can request the Court order payment in their favour from your estate, regardless of your wishes expressed in your Will at the time it was executed. 

Furthermore, parties excluded from your Will might also have cause to successfully contest your Will if they can argue in Court that you might not have had testamentary capacity at the time your Will was drawn up or if they can argue credibly that you might have been unduly influenced and pressured to change your Will by someone else in your network. 

Your Solicitor might suggest you partake in a testamentary capacity assessment with consideration of the above, in order to minimise as far as possible, the risk of your Will successfully being contested by anyone following your death, and to ensure your estate is divided and disseminated to your chosen beneficiaries exactly as you intended after your death. 

Our experienced and highly qualified assessors are experts in ensuring the above points which might make your Will vulnerable to being contested after your death are explored as part of the assessment process. Furthermore, our assessors ensure the report produced is of Court standard, credible and has robust evidence of your understanding and rationale for your decision-making in your Will.

What legal test is used for testamentary capacity assessments? 

The legal test to determine testamentary capacity is a common law test called Banks versus Goodfellow, fascinatingly established in a landmark case in 1870. Banks versus Goodfellow has stood the test of time and remains the legal test for assessing testamentary capacity to the present day. The key components which the assessor must evidence during the assessment and format in the consequential Court standard report are: 

• Understand the nature and effect of the Will 
• Understand the extent of their money, property and possessions 
• Are aware of the people within their own network they would usually be expected to provide for 
• Are free from any delusion of the mind that would affect their dispositions to those people 

What can I expect to happen during my testamentary capacity assessment?

You can expect your assessor to offer you a clear introduction and expectations as to what is to be covered during the appointment. All our assessors are skilled and experienced in a conversational approach so you can be assured that the assessor will put you at ease, with a relaxed and warm but professional approach. If you are not sure about the legal terms important when entering into a new Will such as; estate, beneficiary or executor, our assessor will carefully provide you with explanations in plain English to support you in understanding the key terms in an accessible way.

The assessor will discuss the following points through with you during your testamentary capacity assessment:

• Your motivation to execute a new Will along with when your new Will would come into effect, and your understanding of what happens should you wish to change your Will again in the future.
• Your understanding of your estate to include money, property and possessions.
• Who you have chosen as your executor(s) and what qualities you feel makes a good executor .
• All those who might have a claim upon your estate and how you would describe your relationship with each.
• Who you have chosen to be the beneficiaries in your new Will and why.
• Who you have excluded as a beneficiary in your Will and why, including that you have considered any potential impact upon those who are excluded from your Will or upon those taking a lesser share of your estate. 
• Your intended distribution of your estate among your chosen beneficiaries. 
• That you can recall and advise of your rationale of any significant changes from your previous Will to your new Will.

Our assessors will explain to you that there is ‘no wrong answer’ when it comes to deciding to whom and how you want to distribute your estate upon your death, as long as you can give a brief description of how you arrived at your decision and that the wishes expressed in your Will are your own. 

How long will my testamentary assessment take?

Typically, it takes approximately one hour for our assessors to go through all the points required for a testamentary capacity assessment. However, we will always follow a pace you are comfortable with. Depending on the number of proposed beneficiaries contained in your new Will, or if your estate is complex, the appointment could take longer. 

Do you need a copy of my new Will? 

To ensure the assessor covers all the essential components of the Banks versus Goodfellow test which will satisfy the potential future scrutiny of the Courts, it’s essential that we have a clear understanding of the full contents of your new Will ahead of the appointment in order to allow our assessors to prepare the assessment content. Ideally, we like to have a copy of the new draft Will ahead of the appointment. However, if the new Will is yet to be drawn up a clear summary breakdown of the intended executors, chosen beneficiaries and manner of distribution planned for the new Will is sufficient for us to be able to prepare and complete the testamentary assessment. 

Why do you need a copy of my old Will? 

From time to time successful legal challenges of a contested Will occur in Court in the absence of sufficient evidence that the testator could recall their previous Will and the significant changes to the new Will. For us to provide you with the most Court robust testamentary capacity report that can withstand scrutiny in Court it’s essential that we can evidence in our report that you were aware of the contents, and any significant changes from your previous Will when your new Will is executed. Ideally, we like to have a copy of your old Will ahead of the appointment. However, if the old Will is unavailable a clear breakdown of the identified executors, chosen beneficiaries and manner of distribution detailed in the old Will summarised is sufficient for us to be able to prepare and complete the testamentary assessment.

Why do you need to know the details of my money and property affairs to complete a testamentary assessment? 

We fully understand why you might be reluctant or cautious to share your financial details with us ahead of the assessment. However, it is crucial that our assessors understand the extent of your assets ahead of the appointment to prepare the assessment content. Evidencing your understanding of your estate is a critical aspect of the Banks versus Goodfellow test for us to be able to produce a robust Court standard report post-appointment. 

Is anyone allowed to be present to support me during my testamentary capacity assessment?

We understand that having a testamentary assessment might make you feel apprehensive. Please be assured our friendly and professional assessors will do all they can to put you at ease during the appointment. However, if you would prefer to also have a person sit in with you for additional reassurances it is critical that this person is not one of your proposed beneficiaries, as this will invalidate the credibility of the report as the assessor will not be able to discount the impact of any undue influence on your decision making.

Perhaps you have a neighbour or friend who might be willing to sit in on the appointment with you. Your beneficiaries are very welcome to be present for introductions at the appointment opening and to stay whilst they check you are relaxed and comfortable to proceed. However, once the assessment commences, we kindly request that your beneficiaries vacate for the assessment duration. 

Can a testamentary assessment be completed virtually? 

Testamentary capacity assessments can be undertaken both face to face or virtually, and we complete many testamentary assessments virtually as this option often appeals to those being assessed as a time and cost-efficient option. 

However, as a critical aspect to be evidenced during a testamentary capacity assessment is that the person being assessed is free from any undue influence, we must be vigilant that no proposed beneficiaries are in attendance during a virtual testamentary assessment. Consequently, if you are unable to operate a virtual appointment yourself on your computer or laptop, then we suggest that you either visit your Solicitor’s office so that they may facilitate the technology for the virtual appointment for you, or your Solicitor supports with facilitating the technology for you in your own home.

Unfortunately, we cannot accept instructions for a virtual testamentary assessment where one of your proposed beneficiaries are identified to support with the virtual appointment as we would be unable to rule out undue influence as a factor in your decision making for your new Will with a beneficiary being in attendance at your virtual assessment. 

Can I still make a Will if I have a diagnosis of dementia a brain injury or a learning disability?

Absolutely, a diagnosis of dementia, a brain injury, a learning disability or similar has no bearing on whether you have testamentary capacity or not. All our testamentary assessments are undertaken in an especially supportive manner with plenty of accessible explanations, repetition of key points and supportive prompts and encouragement. Our assessors are also skilled in alternative communication methods and are able to complete assessments with those who have communication impairments as we have access to a wide range of creative communication resources to cater for that individual’s specific needs. Whether you have testamentary capacity is concluded by evidence of being able to understand, retain and weigh up, post supportive explanation the critical aspects of the Banks versus Goodfellow test and the conclusion is not based on any diagnosis you might have but on the evidence our assessor collects on the day.

I am estranged from some members of my family. Why do you still need to talk about these people during my testamentary assessment? 

Most of the testamentary assessments that we undertake have an estranged family member or complex blended family dynamics involved as these family systems are so common in the modern world, yet also make your Will more vulnerable to future contesting in Court if not carefully considered as part of your testamentary assessment. 

What happens if the assessor concludes that I don’t have testamentary capacity? 

Our assessors are experts in undertaking testamentary assessments, completed in a supportive manner to best foster your understanding of the appointment content. However, occasionally, despite our best efforts we cannot conclude you have testamentary capacity. In these cases, we can complete a COP3 for a Statutory Will in lieu of a testamentary capacity report if advised so promptly after the assessment appointment.

A Statutory Will is a Will ordered by the Court of Protection in the best interests of a person without testamentary capacity. We recommend that you speak with your Solicitor to decide if applying for a Statutory Will via the Court of Protection is the right option for you if you are assessed as not having testamentary capacity.

If I make a new Will after my testamentary assessment, will I need a new testamentary capacity assessment?

If you decide to change your Will again in the future after having your testamentary capacity assessment, we suggest you speak with your Solicitor as to whether a further testamentary capacity assessment is recommended.

If a simple change is required it might be that your current testamentary report is still sufficient however the report will only evidence your testamentary capacity at the time and date it was completed, and to cover the decisions contained in that Will.  Complex changes in a further Will such as adding or removing a beneficiary, or if you have had a new medical diagnosis affecting memory or understanding, it may well mean that you require a further testamentary assessment.

What happens after my testamentary capacity assessment? 

At the end of the appointment, our assessor will let you know what the outcome of the assessment has been. If you have a Solicitor supporting you with executing your new Will, we will also let them know what the appointment outcome is on the same day. The full comprehensive and robust Court standard report will then be finalised and returned within 7 days of the assessment appointment ready to be filed with your new Will.

To book a testamentary capacity assessment with us, simply fill in our online form or give us a call on 0333 772 9315 and we can get the process started.

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Regardless, it is quite likely that if you have Dementia that your legal representative will suggest that a specialist report, called a Testamentary Capacity Assessment is completed and filed alongside your Will.

Learning that you have a diagnosed cognitive impairment such as Dementia can often act as a catalyst and motivation to want to ensure all of your affairs are in order, such as making Lasting Powers of Attorney, making a new Will, or making changes to a previous Will. As Mental Capacity Assessors, we meet many individuals who are motivated to ensure that their Will is up to date following a diagnosis of Dementia.

What is Testamentary Capacity

Testamentary Capacity is a legal phrase used to describe that an individual was of satisfactory sound mind, and had adequate understanding, at the time the Will was made. The Courts advise that the ‘Golden Rule‘ should always be followed when drawing up, or making amendments to a Will;

‘No matter how straightforward matters may appear, when making a Will as a Testator who has suffered serious illness, a Testamentary Capacity Assessment should be considered, the findings of which evidenced and recorded. Thus reducing the likelihood of a contested probate, ensuring the testators wishes are honoured after their passing’.

As you can see the bar for requiring a Testamentary Capacity Assessment is actually quite low. Whilst having a diagnosis of Dementia does categorically not equate that you lack Testamentary Capacity, it does leave you vulnerable to later challenge from those in your network who might have a claim upon your estate and can lead to untimely and costly problems at probate after your passing.

For those individuals with a diagnosis of Dementia, having a robust Testamentary Capacity report filed with your Will, can sufficiently minimise the risk of a successful legal challenge regarding the content of your Will from anyone who might have a claim upon your estate after your death.

There is no ‘wrong answer’ when it comes to your choice on the division of your estate. All we concentrate on as Mental Capacity Assessors is listening to your views, and recording that you have given your options due thought and reflection when you came to your decisions within your Will.

My memory is better at some times than others

As experienced Mental Capacity Assessors and Dementia Friends, we will ensure that our friendly and conversational approach will put you at ease and give you the maximum opportunity to be able to voice your wishes for your estate on your death. We understand that for those with Dementia there can be a significant differences in short term memory at different times of the day. For example, a person with Alzheimer’s might experience Sundowning and confusion in the afternoon, but be perfectly lucid and able to express their wishes in the morning, and so that is when we will book to see you. Through our thorough triage process, we will ensure we meet with you at your best, we also consider if visual prompts such as photos from our stock images, or written information might be used as a supportive measure assisting you to articulate what your wishes for your Will might be. We use Face Visors instead of face masks as PPE to help those who benefit from lip reading to support communication. We also check pre appointment that you are free from acute medical conditions that can cause confusion such as unstable blood sugars, or a urine infection, minimising any risk of you not being able to tell us your wishes accurately on the day of the appointment.

Testamentary Capacity assessments and coercion

Coercion is ‘persuading someone to do something’, and when it comes to Will’s, if an argument can be made that the individual who made the Will was being coerced at the time it was executed, then the Will may not be valid, and vulnerable to being successfully contested later down the line. Post the Covid-19 pandemic the Ministry of Justice is reporting an almost 20% increase in the amount of Will’s which are being contested. At Thornton & Lee we triage each individual case very carefully to ensure the best method of assessment is chosen to suit the individuals needs and circumstances. When we meet with an individual to be assessed another essential part of the appointment process is exploring motivation and decision making with the individual, to assess and conclude within our report that the individual is making decisions for the distribution of their estate within their new Will of their own free will. Consequently, all face to face assessments completed must be undertaken without any proposed beneficiaries in attendance, although they are welcome to be at the appointment venue for initial introductions and to ensure that their loved one is at ease and comfortable to proceed, before leaving. However, face to face testamentary capacity assessments are not for everybody, and there might be occasions whereby a video assessment is preferred by the person to be assessed due to personal or practical reasons. At Thornton & Lee we suggest that if the individual being assessed is unable to facilitate the video appointment themselves, that an excellent solution is for the video assessment to take place at their Legal Representatives office, with support there to operate the video technology. This approach ensures that the report produced is legally robust and can fully and objectively explore coercion and undue influence, which can then be documented within the report and making it legally robust.

What happens if I’m assessed as not having Testamentary Capacity

Our experienced Mental Capacity Assessors will do all we can to ensure that we get the best out of the individual on the day, using a friendly and conversational approach. Before the appointment we will carefully prepare to ensure the best communication methods are chosen to suit individual need, and that the time and date of the appointment is chosen to promote when the individual is likely to be at their best cognitively. However, occasionally despite our best efforts, we have to make a conclusion that the individual lacks the necessary Testamentary Capacity. In these cases, your legal representative might suggest applying to the Court of Protection for a Statutory Will. Thornton & Lee are able to assist with a specialist Mental Capacity report submitted to the Court alongside the Statutory Will application

You can find out more about Testamentary Capacity Assessments or call our friendly experienced team of Independent Social Workers on 0333 772 9315

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Families are complicated, aren’t they? Arguably never more so than in today’s world. Reconstituted families involving separations, re-marriages, step children, and sometimes those who are not related to us by blood or marriage at all, but rather friends who we have chosen to be our family. It might be that there are multiple people within your network who could make a claim to your estate, but whom you would categorically not wish to financially benefit from you now, or ever. Similarly, it might be that you wish to make a beneficiary of an individual or organisation that wouldn’t be an obvious choice to others who know you, and those in your network might challenge your judgement after you are no longer here to offer rationale to your decisions.

The Golden Rule for Testamentary Capacity

The Golden Rule is actually more ‘best practice’ for Legal and Financial professionals rather than an actual ‘rule’. In the case of Re Simpson [1977] the Judge suggested that this rule should always be followed when making a Will by an ‘aged’ or ‘seriously ill’ Testator; that the composition of a new Will should always be approved by a professional who can consider and record a comprehensive summary of the Testator capacity at the time the Will was drawn up.

Sounds a bit discriminatory, doesn’t it? And certainly we complete many testamentary assessments for older people whose minds are frankly maybe even sharper than our own. The point being, the presence of a comprehensive Testamentary assessment greatly reduces the risk of a successful challenge after your passing away. This ensures the people you want to benefit from your estate, do just that. But perhaps more importantly, so our clients tell us, is that they want affairs to be as simple as possible for the people they care about when they’re grieving. If an hour or so of their time to chat to our Mental Capacity Assessor will prevent loved ones from the stress of a legal challenge after their death, then they tell us this is time and money well spent.

Protecting Your Wishes After Your Death

Our Mental Capacity Assessors have discovered that an individual’s motivation for including and excluding beneficiaries from their Will are as varied as the colours of the autumn leaves. Some of these value driven decisions are based upon very practical reasons such as who they believe ‘requires’ financial support on their death, versus those who they have appraised to already be financially sufficient. Some are emotive driven instead, such as a strong desire to reward a prospective beneficiaries love and loyalty, or equally to exclude a party who might be perceived to have caused hurt, betrayal or abandonment.

It’s Your Will and Your Decision 

Thornton & Lee’s professional values are rooted in empowerment. We are not here to judge your decision making in choosing beneficiaries in a Testamentary capacity assessment, but rather to evidence that you gave due thought and reflection when drawing up your Will. Equally we discuss with you the nature of your estate, so we can evidence in very simplistic terms in this Court standard document that you understood what you had, who you wanted to give it to, the impact upon those you chose to leave out, and that you were of sound mind when you made the decision. 

What about coercion and undue influence

Coercion is ‘persuading someone to do something’, and when it comes to Will’s, if an argument can be made that the individual who made the Will was being coerced at the time it was executed, then the Will may not be valid, and vulnerable to being successfully contested later down the line. At Thornton & Lee we triage each individual case very carefully to ensure the best method of assessment is chosen to suit the testators needs and circumstances. When we meet with an person to be assessed another essential part of the appointment process is exploring undue influence and coercion with the individual to assess and conclude within our report that the Testator is making decisions for the distribution of their estate within their new Will of their own free will. Consequently, all face-to-face assessments completed must be undertaken without any proposed beneficiaries in attendance, although they are welcome to be at the appointment venue for initial introductions and to ensure that their loved one is at ease and comfortable to proceed, before leaving. However, face-to-face testamentary capacity assessments are not for everybody, and there might be occasions whereby a video assessment is preferred by the indivdual to be assessed due to personal or practical reasons. At Thornton & Lee we suggest that if the individual being assessed is unable to facilitate the video appointment themselves, that an excellent solution is for the video assessment to take place at their Legal Representatives office, with support there to operate the video technology. This approach ensures that the report produced is legally robust and can fully and objectively explore coercion and undue influence, which can then be documented within the report and making it legally robust.

Why We Enjoy What We Do

From supporting a Testator to ensure that a devoted adult child benefits from a loving fathers estate, to providing the evidence in a Testamentary assessment to assist with a Testator’s wishes to exclude an adulterous spouse from their Will, to us the privilege of being a cog in the wheel that helps honour an individuals wishes after their passing, really does lead to tremendous job satisfaction as the authors of a Testamentary capacity assessment. 

If you would like to get in touch regarding a Testamentary assessment then please do reach out and one of our friendly team will be happy to help. Call us today on 0333 772 9315 or send us an email on info@thorntonlee.co.uk. Alternatively, you can fill out our contact form below and someone will respond to your enquiry within 24 hours. 

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My mother once said to me if something feels off, then it usually is.

We often get referrals from legal professionals requesting a testamentary capacity report be undertaken by Thornton & Lee because their professional intuition leads them to believe that something is amiss although they can’t quite put their finger on why.

Our testamentary capacity assessments don’t simply focus on a testator’s understanding of being involved in a testamentary act, their estate and those who may have a claim upon it, and the division of their estate post death. But also upon their rationale for choosing and excluding beneficiaries, why some beneficiaries might be taking more than others, and the impact upon those taking less or being excluded from the Will altogether. This approach leads to wonderful, qualitative evidence to be contained within the report, allowing our assessors to conclude a professional opinion regarding any issues of undue influence or coercion.

I believe that Independent Social Workers are very well placed to explore undue influence and coercion with testators as part of the testamentary capacity appointment process, as we have extensive experience of asking difficult questions sensitively, and triangulating evidence to make solid recommendations due to our training and experience of undertaking safeguarding cases from our backgrounds in Local Authority Social Work teams.

Having the skill set to drill down into a testators rationale for the division of their estate allows us to explore and conclude if we believe any undue influence is at play, or rather that the testator is simply exercising their right to make a decision based on their own values and motives, however unusual or unwise these choices might sound to others.

The post The Role of Independent Social Workers in Exploring Undue Influence in Drafted Wills appeared first on Thornton & Lee.