Assessing Capacity in Will-Writing - Balancing Efficiency & Legal Risk

Introduction

Grey areas around testamentary capacity can become costly legal battles and by the time concerns surface, it is often too late to fix them. For practitioners handling will instructions, the challenge is rarely the obvious cases. It is the clients whose capacity appears uncertain, fluctuating, or deceptively sound that create the greatest professional risk.

Balancing speed, sensitivity and legal protection is no easy task. Clients and beneficiaries often want wills completed quickly, while practitioners naturally aim to deliver an efficient and respectful service without undermining confidence in the client’s judgment. Yet failing to identify warning signs at the outset can lead to litigation, uncertainty and outcomes no testator would wish to leave behind. Equally, unnecessary delay or excessive caution can have serious consequences of its own.

This new virtual classroom seminar will equip practitioners with the tools to manage that balancing act confidently. Through analysis of the leading authorities, recent case law and practical examples, the session will examine what the courts expect, how to recognise and respond to potential capacity concerns and the best approaches for handling these sensitive instructions in practice.

What You Will Learn

This live and interactive session will cover the following:

• A concise review of the key elements of the Banks v Goodfellow test and its modern application
• The ‘golden rule’ - what it requires in practice and when adherence is advisable
• Recent case law guidance on the expectations placed on an ‘experienced practitioner’ and the weight given to their assessment of capacity
• The extent of a testator’s understanding required in relation to life interests, discretionary trusts and partnership arrangements
• The evidential value of earlier wills in assessing capacity and when they assist or mislead
• The risks posed by articulate yet delusional testators, with reference to Clitheroe v Bond and the concept of insane delusion
• Evaluating capacity alongside undue influence and fraudulent calumny, including identifying when a testator is simply adopting another’s views
• The circumstances in which the rule in Parker v Felgate may operate to validate a will
• The alternative safeguard of Court of Protection involvement and statutory wills, with lessons from BH v JH
• Professional risk exposure, including negligence claims from disappointed beneficiaries, illustrated by delay in Feltham v Freer Bouskell and the more ambitious claim in Dorey v Ashton

Recording of live sessions: Soon after the Learn Live session has taken place you will be able to go back and access the recording - should you wish to revisit the material discussed.