Capacity Issues in Will-Writing - Avoiding the Pitfalls & Latest Guidance

Introduction

When is assessing capacity not straightforward?

For most practitioners, evaluating testamentary capacity has become second nature. We often know within minutes whether a client clearly has capacity, clearly does not, or if the situation is more nuanced and requires careful navigation. While most cases fall neatly into the first two categories, it’s the third group where capacity is uncertain that demands a deeper understanding and a more cautious approach.

In this new virtual classroom seminar, we will explore exactly what to do when you are faced with a ‘grey area’ case. Drawing from recent key court decisions, we will break down what judges look for when capacity is challenged. You will gain clarity on the evolving relationship between the Mental Capacity Act and the common law, and how the modernised legal framework affects your practice.

We will also examine the court’s expectations of practitioners, relevant Law Society guidance, and your role in evidencing capacity. Peripheral yet critical issues like knowledge and approval, undue influence, and the need for statutory wills will also be covered.

Register today to build confidence in handling complex capacity issues and to ensure your will drafting practice stays sharp, compliant, and well-informed.

What You Will Learn

This live and interactive course will cover the following:

• When must capacity be shown?
• The common law test of incapacity in Banks v Goodfellow. What is an insane delusion? Clitheroe v Bond
• How does the Mental Capacity Act affect the Banks v Goodfellow test?
• What is capacity? What must T understand in order to demonstrate capacity?
• What is the relationship with Court of Protection jurisprudence? Baker v Hewston
• How do affective disorders affect capacity?
• What does the Law Society expect of the practitioner?
• How far does the Golden Rule apply? How far can the court rely on the experienced practitioner to make such decisions? Key v Key, Wharton v Bancroft, Hawes v Burgess
• Knowledge and approval of contents of will. Is there evidence of impropriety?
• Undue influence and the presence of beneficiaries while instructions are being taken
• The need to act speedily - Feltham v Freer Bouskell
• The effect of earlier wills on determining capacity
• What to do where capacity is already lost. The alternative of a statutory will where capacity is lacking. The test of capacity for a statutory will (re AB)

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.