In our previous article we discussed how testamentary capacity is determined when making a Will and the test that is applied to the potential Willmaker. We also explained how important a Doctor’s report is with regards to protecting the Willmaker’s interests. This article explains the 2 key things a Willmaker can do to protect their wishes if their capacity is later questioned.
1. Involve a Doctor
The solicitor is the person who usually judges a Willmaker’s capacity. This is done through interviewing the Willmaker to ensure they understand the nature of their assets and have the necessary capacity to give instructions to the solicitor to prepare a Will.
If the Willmaker’s testamentary mental capacity has been questioned or the solicitor believes there may an issue as to capacity, the Willmaker should seek a report that confirms they have capacity from their Doctor. It is our practice to liaise directly with our client’s doctors.
Ideally the Willmaker will organise to have their Will signed on the same day the Doctor provides them with the report or close to that date.
2. Involve a competent lawyer
If the potential for a challenge is high, the Willmaker can protect their wishes by discussing the potential challenges in detail with a competent lawyer.
Ideally, the Willmaker should involve a law firm that has experience not only in the creation of Wills, but also has experience in both asset protection and family provision claims (disputed Wills).
While a lawyer cannot prevent someone from challenging the Will, they can recommend reasonable steps to document what actions have been taken in preparation of the Will to satisfy the court that the Willmaker had capacity to make a Will.