With another high profile contested Will Court case hitting the Newspapers 14th February 2023 titled “War over ‘genius’ bankers £18m fortune: Brother of ex-Goldman Sachs financier brands his Polish lover a ‘call girl’ who ‘conned him out of £4m chunk of estate – including his London flat – before he died aged 55“. It once more highlights a very interesting question when approaching testamentary mental capacity assessments which raises much debate; when does an individual’s right to make what might be viewed as an unwise decision by others tip the balance to being perceived as undue influence?
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.