1. Moorcroft

    Moorcroft Registered User

    Nov 4, 2015
    70
    I ought to know the answer to this question, but advice will be appreciated.

    Mum wants to change her will to cancel a bequest to a friend that she has fallen out with. The amount is only £1,000. Since the friend has cut off contact (perhaps because she does not want to deal with mum's dementia), mum's decision seems reasonable.

    I'll be drafting the new will for her. It used to be my profession, and it isn't worth consulting a practising solicitor.

    But does mum have capacity? She is in the early stages of dementia. Her memory is very poor and her reasoning is impaired, but my brother and I certainly regard her as capable of making major decisions in her life. She is moving house to live near me, and although my brother has poa for her, she has been fully involved in planning and decision making.

    She currently only has a provisional diagnosis of dementia from her GP. She had a CT scan a month ago, and is seeing the memory nurse and then a psychiatrist in January and February.

    My inclination is to play safe and ask the psychiatrist to provide a letter to be lodged with the will, stating that mum has capacity. If he says that she does not have capacity, it is no big deal.

    Has anyone else dealt with a similar situation?
     
  2. Katrine

    Katrine Registered User

    Jan 20, 2011
    2,856
    England
    #2 Katrine, Dec 28, 2015
    Last edited: Dec 28, 2015
    Does the whole Will need changing? Could your mum make the amendment by means of a codicil, legally witnessed? If it was me, and a new Will was needed, I would do it via a solicitor. You could supply the draft if that cuts down on costs. With the likelihood of an imminent dementia diagnosis, you need to avoid any future suggestion of undue influence or coercion.

    The solicitor will satisfy themself that your mum has capacity, and MAY ask for an independent psychiatrist's report if they are in doubt. BTW, you will have to pay for this report, whether you ask for it yourself or whether it is done through a solicitor. Psychiatrists don't given written opinions on testamentary capacity for free.

    I think your choice is to spend a bit of your mum's money upfront to give her peace of mind re the cancellation of the bequest, OR to make soothing comments until she forgets about it. It is very common for PWD to want to use their Will as a means of proving they still have authority and power. This spat with the friend might be the tip of the iceberg, with your mum wanting to change her Will on a regular basis to exert power over those around her. If it was me, I would delay for a bit, perhaps saying you are seeking advice on how to get the amendment legally made without too much expense.
     
  3. fizzie

    fizzie Registered User

    Jul 20, 2011
    2,740
    I thought, and have been told, that someone is deemed to have capacity until testing says otherwise.
    I can't see any problem with making a minor change like that when your mother is still signing it etc etc etc
     
  4. Moorcroft

    Moorcroft Registered User

    Nov 4, 2015
    70
    Thanks for your advice.

    I'm reluctant to waste money on solicitor's fees, but I agree that an independent judgement on capacity would be a good idea. I think I might just pay for a psychiatric opinion. Since she is seeing a psych in Feb, that would be the time to make the request.

    There are already codicils to her will, and if capacity were not an issue, then at this point I'd prefer to make a new will, just for the sake of clarity and tidiness, but your suggestion we play safe and just draft another codicil is good advice.

    As for the danger of her wanting to make further amendments, that is a bridge we crossed some time ago. Between 2004 and 2006 her best friend died, my father died, and then I moved abroad for a few years. After that she kept wanting to make amendments to her will, leaving small bequests to people she did not have a close relationship with. There wasn't much logic to it. She has never left anything to her oldest and most loyal friend, whom she has known for more than seventy years, but wanted to leave a bequest to her cleaner, whom she'd only employed for a few months (and left under a cloud a few months after that). I guess the impulse had something to do with loneliness and wanting to pretend she was closer to people than she really was.

    I always advised her not to change her will. As an alternative, I suggested she kept a list of gifts that she wanted me to pay from her estate, that could be revised with a stroke of a pen. But, she ignored my advice and had a new will drafted by a solicitor. Inevitably, it now has several codicils amending or cancelling gifts, which is why a completely new will would be tidier.
     
  5. fizzie

    fizzie Registered User

    Jul 20, 2011
    2,740
    I have a close friend who told me yesterday that she has left the whole estate to her son and a list of gifts and requests that she knows he will carry out if they seem to be right at the time. Would it be worth seeing if your Mum will do this this time as you suggested before? I'm going to do the same with my eldest daughter as it seems the most practical way to go!
     
  6. nitram

    nitram Registered User

    Apr 6, 2011
    18,280
    Male
    North Manchester
    She has been confused about financial matters in the past
    http://forum.alzheimers.org.uk/show...ect-finances&p=1206511&viewfull=1#post1206511 the psychiatrist should know about this as they should be told about any problems as part of their examination.

    The psychiatrist's opinion of her capacity is therefore likely to be only for a specific action at a specific time, it may be different the next day or the day before.

    The ideal situation would be for any new will to be signed and witnessed in the psychiatrist's presence with a note signed by the psychiatrist saying that at the time of signing they considered her to have testamentary capacity.
     
  7. Moorcroft

    Moorcroft Registered User

    Nov 4, 2015
    70
    Yes Nitram, she has been confused about financial stuff, which is why my bro is using his poa to manage her affairs. Good point.
     
  8. cobden28

    cobden28 Registered User

    Jan 31, 2012
    442
    Back in the early noughties, my late Dad was taken to hospital where he was diagnosed with dementia. Something then happened within the family which I thought might make Dad want to alter his will so I contacted Dad's solicitor who held the will, to inform them of this fact.

    Before Dad could change his will it had to be confirmed whether he had the mental capacity to understand the implications of what he would be doing by changing his will; a consultant psychiatrist was called in to examine Dad and it was decided that he had 'senile dementia to a marked degree' (quote) and did not have the mental capacity to understand the implications of changing his will. The existing will, which had been drawn up some years previous when he still had all his mental faculties, therefore still stood and it was impossible to change it.
     
  9. Bod

    Bod Registered User

    Aug 30, 2013
    1,112
    How likely is a challange to the current will?
    Low-non, do the changes cheaply.
    High, have her capacity checked, if she's lost capacity, then nothing can be done.

    Bod
     

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