Golden – but tactless.
If you are making radical changes to your will and you are of advanced years, or have a history of mental illness (which includes strokes and tumours), please do not be offended if your solicitor explains that they would like to consult your doctor.
The solicitor (and this includes members of the Society of Trusts and Estate Practitioners) is trying to do the best for you. This means that they are trying to make sure not only that your will is drafted following your instructions, and executed in accordance with the formalities, but that it will stand being tested at a later date.
People who are disappointed at being left out of a will do sometimes allege that the person making the will did not know what they were signing – this could mean literally – the person did not understand the English language, could not read through blindness or partial sight, or were deceived in putting their signature to the paper in front of them. Or it could mean a deeper sense of understanding – that the person signing the will did not have the necessary mental awareness to be able to make a will.
In such cases, the law states that the solicitor should obtain the professional opinion of a doctor that the person has testamentary capacity *at the time of giving instructions preferably* – and if they did not, the solicitor has to explain why not – and it is seen as a major blow to the will being proved if there is a reasonable doubt.
“ the Defendants have only themselves to blame for not having [the testatrix] assessed by a psycho-geriatrician in order to determine her capacity in May 2007. [He] accepted that he was aware of the golden rule for solicitors dealing with aged or seriously ill testators , viz. that it is best practice for the will to be witnessed or approved by a medical practitioner who ought to record his examination”
In the recent case of Catling –v- Catling, the judge was particularly scathing of the “professional” adviser (Mr Wallace) that assisted the late Mrs Catling in the preparation of her final will (executed in 2007).
In that case, Mrs Catling had ceased to use her solicitors of many years, who had prepared many previous wills for her. Those wills were very different from the last will that was presented to be proved. In earlier wills, Mrs Catling had treated her children equally. In the final will, she excluded all but her youngest child, Kevin.
The judgment does present many unhappy facts – it appears that Mrs Catling did make wills with her usual solicitor, but that he had found himself unable to continue to advise her because of the suggestion that she was being manipulated by Kevin and his wife, with whom she lived at the time of the will being made, Kevin’s wife being the main carer for Mrs Catling. Mrs Catling also made an Enduring Power of Attorney, which was registered in 2005 appointing that solicitor to be an attorney, but from which he retired, from a sense of being compromised.
It appears that the replacement for that solicitor was Mr Wallace. He was not legally qualified, having only completed a law degree and not completed any further training. He was also a trained builder and described himself as a student barrister – but it appears that Mrs Catling and her family believed him to be a barrister or solicitor and that their misunderstanding was not cleared up immediately. Mr Wallace had a set of terms of engagement that were onerous and not in Mrs Catling’s interest, and the will he drew up contained wide powers for him to charge fees for being her executor, and at the same time wide exclusions from liability and high charges for interest on unpaid bills.
Evidence given in the trial confirmed that once Mrs Catling had sold the house she lived in and moved to live with Kevin and his wife, the rest of the family were continually denied access to her – told that it was not a convenient time, or were unable to speak to her on the phone. This conduct had been raised with Social services,
The story transpires that Mr Wallace visited Mrs Catling between two and four times a week for about two years (that sort of attention is not necessary for making a will and quite unusual). He did spend time with Mrs Catling alone, but the instructions for a will appear to be sketchy, and show that Kevin was present at the time, and to have given subsequent instructions. Mr Wallace also appeared not to understand that there might be any impropriety in having Kevin present, or having Kevin give the instructions for the will. There appears to be no time at which Mr Wallace saw Mrs Catling independently of Kevin and attempted to ascertain her instructions. The time taken to complete the will from initial instructions to execution took some 16 months, which the judge found to be unreasonable, given Mrs Catling’s health and dementia (which may well have been apparent, since the Enduring Power of Attorney was registered in 2005 on her previous solicitor considering that she had lost or was losing the ability to look after her property and financial affairs)
A medical expert was appointed by the court to give evidence on whether Mrs Catling could have understood the earlier wills, made with solicitors, and whether she could have had the necessary mental awareness either at the time of giving instructions, or when executing the will. That expert drew upon as many sources of information as were available in order to come to his conclusion:
By May 2007 I consider that the testatrix was different from dementia of at least moderate degree. If the MMSE score of 4/26 elicited one or two months after she made the ~Will was a reflection of her cognitive state at the time she made her will, it is likely that she was severely demented and would, in my opinion probably not have fulfilled the Banks –v- Goodfellow test because she would have been unable to exercise judgment in assessing the competing moral claims of her eight children for her bounty. It is also probable that she would not have been able to appreciate the extent of her estate. However, it is also possible that delirium, contributed to the low MMSE score in June or early July 2007 and that her score might have been higher in May. I do not consider it safe to presume that the testatrix did have the capacity to make a will in May 2007. Nor do I think that she would have been able to recall that she was making a will drawn up on her previous instructions”
In his concluding words, the judge not only came to a decision on the mental capacity of the testatrix based on the expert evidence, but stated that “this conclusion is reinforced by the Defendant’s failure to follow the golden rule”