Our solicitor that's drafted a change to our will. She suggested a doctor's confirmation of capacity, in case the will is challenged. The doctor has said no, it is more appropriate for the solicitor to do this, as he cannot confirm that my husband understands the will . Where do we go from here?
Will and capacity
- Thread starter Wifey1
- Start date
Hello @Wifey1 .
Is the solicitor refusing to do the will or just being extra cautious?
Do you think the will is likely to be challenged? It’s not as easy as most people think to challenge a will - the challenger would have to prove lack of capacity at the time of making the will and capacity is a slippery thing.
I can understand the doctor’s position as capacity can change from day to day.
Personally I’d either go back to the solicitor or go to a new one with more experience in matters of capacity.
Is the solicitor refusing to do the will or just being extra cautious?
Do you think the will is likely to be challenged? It’s not as easy as most people think to challenge a will - the challenger would have to prove lack of capacity at the time of making the will and capacity is a slippery thing.
I can understand the doctor’s position as capacity can change from day to day.
Personally I’d either go back to the solicitor or go to a new one with more experience in matters of capacity.
It sounds as if it could be too late to change your will @Wifey1 . Is it a joint will?
We had a joint will and wanted to change it. Our solicitor asked me to leave the room once all details had been sorted and he interviewed my husband on his own to make sure he understood what was happening.
He was satisfied and the will was changed.
Our solicitor was one we found who stated they had knowledge of dementia and mental health issues and were able to assess whether or not a person had capacity.
Perhaps the support line will be able to help.
www.alzheimers.org.uk
We had a joint will and wanted to change it. Our solicitor asked me to leave the room once all details had been sorted and he interviewed my husband on his own to make sure he understood what was happening.
He was satisfied and the will was changed.
Our solicitor was one we found who stated they had knowledge of dementia and mental health issues and were able to assess whether or not a person had capacity.
Perhaps the support line will be able to help.
Dementia Support Line
If you need dementia support, we’re here for you. Get personalised information, support and advice by calling us on 0333 150 3456.
www.alzheimers.org.uk
You could try a member of https://lifetimelawyers.org.uk/Public/Why-use-Us/What-is-a-Lifetime-Lawyer.aspx?
This is MDU guidance to doctors on testamentary capacity
This is MDU guidance to doctors on testamentary capacity
The solicitor is not refusing, just advising a doctor's letter in case will is contested. Possibly could be contested by one party.
How determined is the contest likely to be?
The witness could a solicitor present at any discussion about the will meaning both assessed testator to have testamentary capacity.
If capacity varies it's difficult to historically prove incapacity at a certain time.
Defending a challenge could be expensive.
All done. Solicitor did covering letter outlining why changes made, that we both had understood, considered and decided on. Signed and witnessed.
