A Will is a very important legal document. Aside from buying a house, it is probably the most important document a person will sign during their lifetime.

Yet, DIY Wills are readily available and there is no need for anybody advising on a Will to have a professional qualification. 

This is why, so often, Wills end up in Court. Over the next few months, we look at how to make a valid Will.

The first step is that somebody needs to have the mental capacity to make a Will, which is not always easy to demonstrate.

Just because somebody may not have capacity to run a bank account, this doesn’t always mean that they do not have capacity to make a Will.

Similarly, somebody capable of living on their own may not have capacity for making a Will.

The leading case on this is Banks v Goodfellow. Incredibly, this case was heard in 1870 but is still the leading precedent in numerous current cases where capacity is disputed. 

There are three tests to be considered:-

  1. Does the person understand the consequence of a Will?

    In this test, it is important for the person to know they are making a Will, what a Will is, and the consequences arising from it.
  2. Does the person understand the extent of the property they are disposing?

    In this test, it is important that the person knows what their assets are, for example the house that they own, and that it is worth a significant amount of money.

    They do not need to know to the nearest pound but should have a clear understanding as to its significance. For example, somebody may have a bank account with £200,000 in it. They just need to be able to know that they have a substantial amount of cash to leave.
  3. Has the person considered those who might have a claim or expect to benefit?

    For this test, the individual would need to show that they had considered, for example, their children, or other close members of the family.

    They do not need to leave anything to those people, but just have considered them. The advantage of using a professional here is that they will keep an attendance note showing this. Some consider it good practice for the individual to write a separate note saying why a particular relative has been excluded or not treated as favourably as other relatives.

    This could be something along the lines of “I have left more to my son than my daughter as she has a rich husband and is not in need of any inheritance”.

There are probably more Wills challenged for alleged lack of capacity than for any other reason.

Next month, we will look at what has to be included in a Will.

For advice or assistance in writing a Will, please contact Carol George on 01480 426500 or by email to wills@georgehay.co.uk.

GH Wills is the trading name of GH Wills Ltd.

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