What part does mental capacity play when making a Will?

Mental Capcity

You must have the capacity

Making your decision

With increasing number of people being diagnosed with Alzheimer and Dementia each year it is important to address the question what part does mental capacity play when making a Will?

The Mental Capacity Act 2006 is designed to protect those who are vulnerable and lacks capacity to make decisions. This act only applies to those in England and Wales.

So, we need to start from the beginning. When we talk about mental capacity necessary to make a Will we are referring to someone’s ability to understand what they have and make decisions about their possessions bearing in mind their obligations and expectation of closest family members and be able to remember those decisions they have made.

A person does not lack mental capacity just because they make unusual or objectionable decision provided at the time, they made those decisions they knew what they were doing. Equally, someone who has physical disability which makes communication difficult does not mean they do not have the capacity to make decisions just as someone who has  intermittent lapses of memory cannot be considered to lack capacity to make decisions provided they remember what decisions they made.

As a person cannot make a valid Will if they did not have the mental capacity to make decisions independently, assessment of mental capacity is vital when it comes to making a Will to avoid subsequent challenge to a Will.  

Mental Capacity and Will Writing

Why is Mental Capcity so Important?

Allegation of lack of mental capacity is a fertile ground for contesting a Will. Deceased’s family or beneficiaries could be locked in a costly and lengthy legal battle if appropriate steps are not taken at the outset when the Will was made. 

At Whitestone Solicitors we not only guide you through each of the steps you need to take when making a Will to ensure it is protected from challenge in the future, we also have experience of assessing capacity when taking instructions from a person who wishes to make a Will. 

If we cannot make such an assessment because someone’s capacity is borderline, we can advise what steps can be taken before we take any instructions to prepare a Will.  

If a person suffers from any disability or health problems that could affect their mental health and more importantly their capacity to make decisions, it is important to seek medical advice from the person’s GP or health professionals as to that person’s capacity to make a Will BEFORE it is made. A Will made based on a clear medical certificate of assessment of capacity would make it more difficult to sustain a challenge to that Will.

Apart from lack of mental capacity, a Will can be also challenged if it can be proved that it was made under undue influence or under duress or the person who made the Will did not approve of the contents of the Will or know what they were signing.

Why Whitestone Solicitors?

decades of Experience

When it comes to making a Will often difficult decisions must be made which can be upsetting and confusing

At Whitestone we have dedicated and experienced Solicitors with decades of   legal experience to help and guide you.

Call us for FREE for an initial no obligation legal advice about making a Will on 08008 101010 or drop us a message

It is never too early to make a will or Power of Attorney

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