Law says no necessity for a medical assessment to change a will

Discussion in 'Legal and financial issues' started by Norfolklass, May 2, 2018.

  1. Norfolklass

    Norfolklass Registered User

    Feb 14, 2007
    16
    Norfolk
    Are people aware that there is no legal requirement for a solicitor to seek a medical assessment of an individual before changing an existing will of long standing.

    Even when the solicitor’s own notes on the meeting with the individual state:-

    “appeared to be rather vague”
    “I began to have concerns about his understanding’
    ‘He was very vague and seemed to drift away during the conversation’
    ‘Occasionally he would almost snap back into awareness but could not sustain that for long enough to provide me with the instructions I needed’
    “was rather vague again”
    ‘I did have some concerns about capacity’

    Despite having an existing will of 8 years standing and having been officially diagnosed with Alzheimer’s/dementia my elderly confused fathers-in-law will was changed a few weeks before he died.

    The instructions for the changes to the will were initiated by someone un-related to my father in law, my father-in-law had only the one child my husband.
    This person, who my father-in-law did know but disliked, in addition to initiating the new will:-

    detailed the changes to be made;
    made themselves the main beneficiary of the new will;
    made themselves the executor of the new will;
    and attended the meeting with the solicitors and my father-in-law at his home.

    All of which I would have thought would have concerned the solicitors.

    My father-in-law had no memory of having changed the will as a few days before he died he kept reminding my husband (his only child) that he was the main beneficiary of the will and its executor.

    After his death the solicitors (who had also written the will we had for my father-in-law some 8 years ago) wrote to us advising us that his old will was invalid and that a new will had been written a few weeks before my father-in-law was rushed into hospital effectively to end his days.

    We wrote to the solicitors asking for details about how the will could have been changed without a medical assessment of my father-in-law. They sent back detailed notes on how the new will came about.

    Their notes contained the above mentioned phrases about my father-in-law and yet still they decided not to get a medical assessment done on him. The solicitors informed us that they were not interested when we told them my father-in-law had been officially diagnosed with Alzheimer’s/dementia long before the new will was written.

    In this situation it turns out there is very little you can do. My father-in-law’s doctor despite being deeply sympathetic said that the law did not allow him to release any medical information to a family member. That only the executor of the will could have access to my father-in-law’s medical records. So he could not even give us his retrospective medical opinion as to whether he thought my father-in-law was of sound enough mind to have changed his will of 8 years standing.

    Though we are pretty certain having known my father-in-law for many years he would have said he was not.

    Reluctantly taking legal advice about challenging the will we were advised that my father-in-law’s solicitors were under no legal obligation to get a medical assessment done. If we wanted to challenge the will it would cost around £10k+ and without the medical information from my father-in-law’s doctor our chances of winning the case were slim and it would all have to take place in a court of law.

    I was deeply shocked that there wasn’t a legal requirement for a solicitor not to seek a medical assessment of someone who without doubt was extremely confused.

    When my elderly parents, before my dad’s diagnosis of Alzheimer’s/dementia wanted to ‘tweak’ their will, their solicitors insisted that a doctor’s report be sent confirming both parents were of sound mind. At the time is was annoying to have to go through this process but I assumed it was the law, so this is what we did.

    But it seems under the law a solicitor can chose to make their own medical judgement as to whether someone is of sufficient sound mind before changing a will.

    I would have thought at least given the fact that the will was no longer benefiting the only child (my husband) would have rung alarm bells, but seems it did not.

    Obviously the loss of the monies (which were not inconsiderable) has been hard, but I think the worst part was that as my husband is no longer the executor, he had no say over the disposal of my father-in-law’s house and all his personal effects, most of which we believe are now skip fodder as we could no longer access his home. The loss of all the family photo albums is probably the hardest to bear and deeply distressing.
     
  2. Murper1

    Murper1 Registered User

    Jan 1, 2016
    122
    Jaw dropping. I had no idea this could happen. Sorry this has happened to you.
     
  3. campervan21

    campervan21 Registered User

    May 4, 2017
    122
    Derbyshire
    This is awful, didn’t know this could happen
     
  4. Saffie

    Saffie Registered User

    Mar 26, 2011
    22,367
    Female
    Near Southampton
    This sounds so unfair. Have you considered contacting your MP because if this is lawful then the law needs to be changed. Shocking! I am so sorry.
     
  5. marionq

    marionq Registered User

    Apr 24, 2013
    4,620
    Female
    Scotland
    I would be contacting the Law Society in Scotland - dont know the equivalent elsewhere. I believe in law there must be a requirement to ensure the person you are dealing with is compos mentis.

    This solicitor needs to be held responsible.
     
  6. Saffie

    Saffie Registered User

    Mar 26, 2011
    22,367
    Female
    Near Southampton
    I agree. There is that requirement for LPA so surely it should be for this too.
    Who had LPA for your FiL?
     
  7. nitram

    nitram Registered User

    Apr 6, 2011
    15,908
    Male
    North Manchester
    This is analogous with the often quoted phrase on TP that the donor of an LPA only has to understand the implications of signing at the moment of signing, this understand is judged by the certificate provider. Many posters say that a friend can be the certificate provider without any reference to a medical professional.

    The solicitor had to make a judgement as to whether or not the person signing had testamentary capacity at the time of signing.

    In England (s)he should have followed 2.7.3 in
    http://www.lawsociety.org.uk/suppor...ocuments/wiqs-wills-and-inheritance-protocol/
     
  8. Saffie

    Saffie Registered User

    Mar 26, 2011
    22,367
    Female
    Near Southampton
    Yes but Norfolk lass has written that the solicitor had concerns about her FiL’s capacity when he signed the Will.
     
  9. Juliasdementiablog

    Juliasdementiablog Registered User

    Oct 23, 2017
    78
    Female
    Brighton
    That is completely ridiculous, and suspicious. Why would the solicitor make such substantive changes if they didn't have anything to gain themselves, when there were clearly concerns about his capacity to make such a change. Just writing to express my deep concern for you and your husband, in what must be a shocking mishandling by the solicitor. A sensible solicitor surely should have requested a short call to the only child and previous benefactor, or at least facilitate a call between the father and his son, to ensure there was nothing awry.



     
  10. nitram

    nitram Registered User

    Apr 6, 2011
    15,908
    Male
    North Manchester
    It could be argued that by recording these concerns the solicitor has demonstrated that they acted with due diligence, and on balance considered that the client has testamentary capacity, else why record them?
     
  11. Quizbunny

    Quizbunny Registered User

    Nov 20, 2011
    64
    Could the OP not challenge the will?
     
  12. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,215
    That was covered in the post.
     
  13. nicoise

    nicoise Registered User

    Jun 29, 2010
    1,805
    There have been a number of cases in recent years where wills have been challenged due to being made when the testator had dementia. Here is just one:

    https://www.step.org/news/court-finds-will-valid-despite-decline-mental-capacity-time-execution

    I agree it is shocking that the courts can seemingly uphold such wills made in what to the ordinary person seem to be questionable circumstances.

    However, it can cost eye watering amounts of money to challenge such wills through the courts; your solicitors’ quote of £10,000 would just be for opening the case. A case where a will involving a Farm was overturned (rarely!) cost the defendent £1million in costs - though where that money might come from having lost the case is questionable.

    If you want another opinion about whether you have a case you could seek out a solicitor that specialises in contentious probate - but only you know whether the estate is worth taking this action. The response by the solicitors who made the will is not the final word - that would be their reply as their work is being questioned! But you’d need a robust case to pursue it. These cases can take years.

    No, it is not fair - but what the particular circumstances surrounding your FIL and his new friend are only you know about. I know when my mother’s LPA was in place, the solicitors holding her Will asked for a copy to go in the file, I assume in case she wished to make changes so that they would be aware. Of course, had she gone to new solicitors and made a new will that invalidated the previous we would have been none the wiser until too late.

    But definitely worth flagging this up on the Forum - just another situation to be aware of when involved with dementia :eek:
     
  14. Quizbunny

    Quizbunny Registered User

    Nov 20, 2011
    64
    Oops that'll teach me to make sure I have read things properly.
     
  15. Lawson58

    Lawson58 Registered User

    And to the best of my knowledge, a will can be made without solicitors being involved so who decides capacity then? And a diagnosis of dementia doesn't mean that someone automatically loses capacity. I feel very sorry for what has happened to your family and it really highlights how difficult the question of capacity has become.

    I am not sure how different the laws are to ours but here the will could be challenged based on the relationship of the beneficiaries to the deceased, not just in the physical sense but on the enduring emotional and mutual interdependence of the people involved. The fact that the will was changed just a few weeks before he died would be subject to scrutiny as well and it would be there that the solicitors comments would be relevant.

    Absolute nightmare for you.
     
  16. Saffie

    Saffie Registered User

    Mar 26, 2011
    22,367
    Female
    Near Southampton
    If an LPA for Financial and Legal matters was already in place and activated then would not this make the second Will invalid? If banks won’t deal with anyone bar the holder then should not solicitors act similarly?
    I mean the power is for legal matters too. As the solicitors concerned were already holders of the original Will too and so were aware of the relationship of the father and son, I would have expected then to be a little more cautious. Of course we don’t know about the LPA at present.

    Of course Lawson’s comment about making a Will without a solicitor is relevant too. What a sad state of affairs.
     
  17. Louise7

    Louise7 Registered User

    Mar 25, 2016
    433
    Aside from the capacity issue there is also the possibility of undue influence / coercion but it's not easy to prove. You say that your FIL disliked the individual - is there evidence to show this, can others testify to that etc? Do the solicitors 'detailed notes' make any reference to this other individual and their relationship with your FIL? It might be worth seeking legal advice on this aspect, rather than the capacity element, but it is a difficult thing to prove in the absence of any evidence.
     
  18. nicoise

    nicoise Registered User

    Jun 29, 2010
    1,805
    The ‘problem’ with LPAs in this context is that they can be activated before a loss of capacity, so aren’t in themselves a proof of inability to make testamentary changes. I think the solicitors in my mum’s case possibly just asked for the copy to flag up the need to ascertain capacity or perhaps alert suspicion if she was wheeled in by her new best friend to change everything.

    I do agree that I’m surprised that suspicion wasn’t raised at this complete about turn by Norfolk Lass’s FIL in favouring his friend over his son accompanied by the solicitors notes of questions over lack of full capacity. Perhaps slightly more Rottweiler-ish solicitors might have been more robust about challenging, but I understand most solicitors favour recommending conciliation or conservative action where it is likely to be expensive, drawn out and have a reasonable possibility of failing despite the evidence. The toll these cases take is not to be underestimated, and the present financial loss (discounting the sentimental items) is easier to move on from.
     
  19. julianps

    julianps New member

    May 29, 2018
    6
    #19 julianps, May 29, 2018
    Last edited: May 29, 2018
    My general understanding, though I have to say the sands of change on this are constantly shifting, is that for those who are living the definition of capacity is determined by the MCA 2005 (where it is clear, attorneys have no position in the creation of a Will) where for the deceased the test in Banks v Goodfellow still applies; but as this has been argued over to the hilt a decent contentious probate solicitor might be needed to understand it.

    The first step (in England and Wales) would normally be Larke v Nugus questions to the solicitor who drafted/executed the Will, to show they acted properly. Matters of elderly client support are naturally coming to the forefront these days and examples like this only reinforce concerns.

    And whilst there is no test of capacity to make a Will, there must be (i) testamentary intent; and (ii) knowledge and approval, of the contents of the Will. I would imagine these are the areas you would go to first, though "... undue influence .." seems like the next most obvious starting point.

    Is it possible the solicitor felt under pressure and whilst not wanting to refuse has basically set out the grounds for a challenge (i.e. set out to frustrate the Will from the outset)?

    But it should be stated, the law (that is an ass, sometimes) places great store by testamentary freedom and if you feel you've been hard-done-to and time is still on your side, a challenge under Inheritance (Provision for Families and Dependants) Act 1975 might be more fruitful?
     
  20. julianps

    julianps New member

    May 29, 2018
    6
    #20 julianps, May 29, 2018
    Last edited: May 29, 2018
    Attorneys have no place in Wills, and the existence of a finance-LPA is not a determination of capacity under MCA 2005.

    It is possible to approach the Court of Protection for a statutory Will but CoP is often highly resistant because (i) the law in England and Wales sets great store by testamentary freedom and a Statutory Will flies in the face of that; and, (ii) a testator can at any time replace a Statutory Will with their own, making the whole exercise a waste of the court's time.

    Long-vs-short; the test of capacity for the dead/Wills (Bank v Goodfellow) and the living (MCA 2005) are different and wherever there are differences there are coach-and-horses (and the unscrupulous) trying to get through.
     

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