If there is evidence that someone has abused their position as a donee, the Office of the Public Guardian (OPG) can refer the case to the Court of Protection for further consideration.
Creating a will
As well as being the best way to ensure that your clients' wishes and intentions regarding their assets are implemented after they die, creating a will while there is no concern about their mental capacity can protect your clients against attempts by family members or others to pressure them into making them beneficiaries of your clients' estate.
There are a number of difficulties if there are questions about a person’s mental capacity at the time the will was created. It must be shown that an individual lacked capacity to make a will, or “testamentary capacity” if their will is to be declared invalid on the grounds of lack of capacity.
This was illustrated in the 2017 case of Ashman v Thomas. Mrs Thomas’s brother claimed that he was the executor and principal beneficiary of her one of the three wills she had purportedly made.
The local authority had applied to the Court of Protection to be appointed as deputy of Mrs Thomas’ property and financial affairs due to “concerns of neglect and financial abuse” carried out by her brother, but she died before these proceedings could be resolved.
Mrs Thomas’s son challenged the validity of the will relied upon by her brother and introduced evidence suggesting that Mrs Thomas had been confused and possibly suffering the onset of dementia.
Despite this evidence, the Judge held that "merely showing that a testator suffered from confusion or some level of dementia is insufficient to render that person incapable of making a will".
The Court did however find that the will failed for want of knowledge or approval by Mrs Thomas and she therefore died intestate.
It has been well established since the Victorian case of Banks v Goodfellow that, so long as a person can show that he or she is able to understand the following three things, they will have sufficient capacity to make a will, referred to as “testamentary capacity”.
These three things are:
(i) the nature and effect of making a will.
(ii) the extent of the property available for him or her to leave.
(iii) the potential beneficiaries to whom he or she may wish to leave any property
This is good news for those who are concerned that they are becoming forgetful or have been diagnosed with a condition such as dementia; because it means it is not too late to create a will.
