BOMB PROOFING FOR WILLS?
Richard Isaac Head of Private Client at Tanners Solicitors explains why a mental capacity assessment is essential and should be viewed as an investment rather than a burden.
Illot v Mitson
No English Will is immune from attack. The recent decision of the Court of Appeal in Illot v Mitson,to make £163,000 “reasonable provision” for an estranged daughter, at the expense of the charity beneficiaries named in her mother’s validly made Will, has brought this once again to public attention. This reminds us that Parliament has created statutes under which a perfectly legal Will can be set aside or modified.
The incidence of claims against estates is on a rising trend which this case will tend to encourage by its publicity even though it arguably does not open the legal floodgates much wider. When claims are made those advising claimants will always consider whether to throw in a challenge to the validity of the Will itself.
Such challenges usually focus on the capacity of the Will-maker and it would be unwise, especially in the case of a sick or elderly will-maker, not to have the “back up” of an independent medical capacity assessment in place whenever the family dynamics are such that an attack is a possibility. Clients rightly expect their lawyers to make robust Wills for them. Such an assessment will not rule out the possibility of a claim being made for “reasonable provision” but it will at least largely exclude the risk of the whole Will being declared invalid, with inevitable cost and disruption for the estate, to say nothing of the professional embarrassment and risk of a claim against the lawyer
Most clients, in their heart of hearts, should know whether their Will may create the sort of unhappiness which could lead to a dispute after their death. Wills bring out the best and worst in people. Telling someone making a Will how much worry, delay and cost may be inflicted upon their intended beneficiaries, should a dispute about their estate arise, should persuade them of the wisdom of having a specialist medical capacity report. The investment in that report may repay itself more than a hundred fold (and help their lawyer sleep at night). If a client refuses to accept (tactfully given) advice to have a medical capacity assessment, perhaps that should be seen as a worrying indicator of a possible reduction in their legal capacity….
Richard Isaac – Head of Private Client