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.

During the current Coronavirus outbreak, and with the lockdown in place, you will find a Lasting Power of Attorney invaluable.

A Lasting Power of Attorney (LPA) is a legally binding document whereby you can appoint someone, known as your Attorney, to make decisions and act for you when you are unable to do so for yourself. You must have the necessary mental capacity in order to make an LPA.

Whilst an LPA is most commonly used to support elderly and vulnerable people, it is now even more useful to a much wider group of people from all sections of society. Even the Prime Minister was affected by the Coronavirus, and if he had been incapacitated, his family would have needed an LPA to make personal decisions on his behalf. An LPA is beneficial to more of us now than ever before.

There are two type of LPAs which can be created, these are:

1. Property and Financial Affairs – covering decisions such as buying and selling property, investing money and managing investments, receiving income and paying liabilities.
2. Health and Welfare – covering decisions such as medical care you receive, where you live, who visits you, day to day care such as social activities, and what you eat. It also covers decisions in relation to life sustaining treatment.

With the current restrictions in place due to the pandemic, in particular for the vulnerable and elderly (but not limited to them), having an Attorney appointed to assist you with your affairs has never been so helpful. Subject to your preferences, an Attorney under a property and financial affairs LPA can assist you whilst you still have the necessary capacity yourself. However in these circumstances, any decisions made should be made with your consent. If in the unfortunate situation you were to lose the necessary mental capacity to make decisions in relation to your property and financial affairs, you can be reassured that your Attorney can continue to act on your behalf.

An attorney under a health and welfare LPA cannot act until you are unable to make the decision in question due to lack of mental capacity. This can include incapacity due to being in a coma, illnesses and disorders as well as Alzheimer’s and dementia.  During these unprecedented times many people are finding themselves in critical conditions whereby they are unable to make decisions for themselves. By having a health and welfare Attorney appointed you can be reassured that they can safeguard your preferences and wishes during these crucial times.

It is understandably vital that you appoint the correct Attorney. You can technically appoint as many Attorneys as you wish though commonly between 1 and 4 are appointed. You must not only ensure that you Trust your Attorney implicitly but that they are capable of taking on the role. Your Attorney must also agree to being your Attorney. Attorneys cannot simply do whatever they wish and are subjected to the rules that govern Lasting Power of Attorneys as well as any restrictions you choose to place upon them.

An LPA is a legal deed and it is therefore important that legal advice and assistance is obtained when you are considering preparing one. Nearly 22,000 LPAs have rejected by the Office of the Public Guardian over the past 12 months and sadly for some of these it may be too late for a further LPA to be prepared due to mental capacity having been lost.

The Government have now issued guidance in relation to the preparation and registration of an LPA during the Coronavirus outbreak. An LPA needs to be signed by all parties, including the appointed attorneys and each signature needs to be witnessed by an independent person. A certificate provider, whose role is to confirm that you understand what the LPA is and that no pressure has been placed upon you to make it, also needs to sign the LPA. It is possible for all parties to sign the LPA and still adhere to the current social distancing rules and we are guiding clients through this process.

A Lasting Power of Attorney can provide you, in these uncertain times, a sense of certainty and is more beneficial to use than ever before.

For more information on Lasting Powers of Attorney, contact our friendly Private Client team today on 01908 660966 / 01604 828282 or email PrivateClient@franklins-sols.co.uk.