Capacity to Make a Will

The recent case published regarding the late Margaret Baverstock highlights the importance of ensuring that the legal requirements to prepare and sign a Will are adhered to. In this case, the Judge concluded the deceased lacked the required capacity and that the Will signed eight days before her passing had not been validly executed commenting as follows:

Comments regarding Testamentary Capacity:

• ‘The deceased was also extremely frail and on her deathbed. In these circumstances, it was necessary to question Margaret to ensure her understanding.’

• ‘Merely reading out the document and asking if she understood it was not enough.’

Comments regarding the signing of the Will:

• ‘I am satisfied that the deceased had no idea what was going on. She was unable to act independently and, although she responded with a ‘yeah’ or even a grunt when addressed as mum, that was simply a response to being directly addressed and didn’t indicate consent to signing the Will or acknowledging its contents.’

• ‘She looked completely blank during the reading of the Will and on all, save one occasion, she only responded to her daughter.’

• ‘At no point did Margaret ask Lisa for help in signing the Will or direct her to sign the Will on her behalf. Nobody ensured that she understood what was happening by asking her questions about the contents of the Will or asking her to tell them her wishes, and she cannot fairly be said to have signed the Will.’

As there was no previous Will, the Judge confirmed that as the Will was in fact invalid the intestacy rules applied which resulted in the estate being split equally between the deceased’s two children, one of which would have received nothing if the validity Will had been upheld.

To assist with mitigating claims being made in respect of the validity of a Will being prepared, I have outlined some key points to bear in mind when preparing and signing your Will:

1. Capacity to Make a Will

• You must be at least 18 years old.

• You must be mentally sound and capable of understanding the nature of the Will, what it contains, and the consequences of making the Will. If there are any concerns, then a capacity report will usually be requested by the Legal Advisor. They will also prepare a detailed note on file documenting the circumstances in respect of the preparation of your Will, reasons why the Will was being prepared in that way and their considerations in terms of capacity, adding a layer of protection to your Will.

2. Signing the Will

• The Testator must sign the Will in the presence of two independent witnesses. These witnesses must be present at the same time and watch you sign the Will.

• Witnesses cannot be beneficiaries (people who stand to inherit from your Will), or the spouses/civil partners of beneficiaries, to avoid any conflict of interest.

• If you are unable to physically sign the Will, you can have someone sign it on your behalf in your presence, but there are additional legal requirements to comply with depending on the circumstances.

3. Witnessing the Will

• After you sign the Will, your witnesses must sign the Will in your presence and in the presence of each other.

• The witness should add their full name, address, and occupation next to their signature.

4. Changes to the Will

• If you want to amend your Will, you can create a codicil (a legal amendment to your Will) or make a new Will entirely. If you’re changing your Will, you must follow the same signing and witnessing procedures as before.

• It’s also a good idea to keep your Will updated to reflect any changes in circumstances (e.g., marriage, divorce, births, or deaths).

Here at Franklins Solicitors we offer a comprehensive Will writing service.  For further advice and assistance, please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.