Wills - A Lack of Understanding?
Making a Will can be a complicated process. A solicitor preparing a Will needs to be confident that the person making the Will has capacity to do so i.e. that they understand the nature and effect of making a Will, the extent of their estate and the claims of those who might expect to benefit from the Will. For the purposes of The Mental Health Act 2005, a person lacks capacity in relation to a matter if they are unable to make a decision for themselves because of an impairment or disturbance in the mind or brain.
When a solicitor is instructed to prepare a Will for an aged testator, or for one who has been seriously ill, they should arrange for a report from a doctor to comment on the capacity and understanding of the testator. The doctor should keep notes of the meeting to record the examination and findings. This is known as the Golden Rule, from the leading case of Key v Key (2010). However, a recent case has clarified the law further.
In Greaves v Stolkin (2013 ), Mr Stolkin made a Will in 2001. In 2007 he decided to make a codicil to provide for his partner, Pauline. They were living together but not married, so Pauline would not automatically inherit anything on his death.
In 2009 Mr Stolkin was taken to hospital as he was suffering from motor neurone disease. His son Mark noticed that the codicil had not been executed properly and advised Mr Stolkin to instruct a solicitor to put matters right. The solicitor who had drafted the original Will attended the hospital and drafted a new codicil. In an attendance note the solicitor noted that Mr Stolkin was “lucid throughout” the meeting and was providing “meaningful responses”.
Will dispute on the basis of incapacity
After Mr Stolkin’s death, his other son Gary claimed that the codicil was unenforceable. He claimed that his father had been in a state of extreme confusion when the codicil was drafted and signed. Gary said that his father knew neither the nature nor effects of his actions. He relied on the fact his father had an infection which led to some confusion. The court highlighted that the testator required “mental energy” for decision making. The court asked two medical experts to examine the attendance notes and medical records but the experts reached two very different conclusions!
The first medical expert said that Mr Stolkin signing the documents was only “passive acceptance” of the contents and did not reflect his own considered decisions. He stated that patients with severe depression often lacked mental energy.
The second medical expert said that Mr Stolkin did not lack mental energy at the time the codicil was signed and was capable of making his own decisions. Although the hospital notes documented episodes of confusion, these only seemed to occur in the evening. Crucially, the codicil was signed early afternoon.
The court decided to uphold the codicil. They stated that if the document was drafted by an experienced lawyer it should only be set aside on clear grounds of lack of capacity. The judge noted that the disputed codicil corresponded closely with the previously unenforceable one. The court emphasised two things that a Solicitor who is concerned about a testator’s capacity should do:
- Arrange meetings with testators earlier in the day as often this is when people are more lucid.
- Make comprehensive attendance notes as to the appearance and state of mind of testators.
Will dispute solicitors
If you believe a Will has been drafted when a person lacked capacity, we have an experienced team who can advise on your options and, where appropriate, assist in making a claim.
