Do you have capacity to make your will?

by | Oct 12, 2021

We’ll forgive you if you read the word capacity and thought ‘what does that have to do with making a will?’ It’s basically shorthand for mental capacity, which can seem a bit insulting, but it’s an incredibly important concept. When we come to see you to make your will, we need to be sure that you understand what you’re doing. Sometimes it’s easy to work out, but not always. Here are a few of the things we look at when it comes to capacity.


What happens when you make a will?

The capacity test for wills has been around since 1870 and it starts off with a simple question. Do you understand what it means to make a will? That might seem a bit obvious. After all, you probably wouldn’t choose to make a will unless you knew why you were doing it. All the same, we have to check that the person making the will understands that it sets out what happens to their property when they die. If they seem confused, that could be our cue to request a professional capacity assessment.


Do you know what you own?

We don’t expect you to know every detail of your property down to the last penny. However, you need to know roughly what you’ve got so we can include it in the will. At the same time, if you can’t tell us that you own a house, or you’ve forgotten something important, that could be a sign that you lack capacity. We recommend that you get your paperwork together before we meet. It helps to give you a reminder, but also lets us check whether you’ve covered everything.


Have you thought of everyone?

You can leave your property to whoever you like, but you’ll be expected to think about your closest relationships or anyone who’s dependent on you. That could be your spouse, civil partner or your children. Forgetting someone important could mean that you’ve lost capacity. If you’ve decided to leave someone out, we’ll ask you to explain why. This is important as your will could be challenged but speaking clearly about your reasons also shows that you understand what you’re doing.


Communication barriers

Sometimes, communication barriers can present a challenge when we try to assess capacity. It can also make it a struggle to understand what your wishes are. We sometimes need to book an interpreter if English isn’t a client’s first language. Having an independent person means that we can be clear about what the client is saying and whether there might be any capacity issues.

We also had a client who had suffered a stroke and struggled to get her words out. She understood what she wanted so we needed to find a way to communicate effectively. Sometimes that means drawing pictures!


Red flags

We generally start with an assumption that a client has capacity unless there are warning signs that they don’t. We need to make sure that they don’t have any disorder of the mind that prevents them from thinking rationally. If we’re in any doubt, we’ll get a capacity assessment to make sure. This is particularly important if the will might be open to challenge. We’ll look for signs that the client is being persuaded to favour one person over another or leave out one of their children.


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