Wills - Still On Going For Me

[Manymoves]

QA. Is it true if someone want to exclude a relative from their Will that they have to write a 3 page document explaining why?

QB. If a person has Dementia does a G.P. have to be present when the Will is drawn up?

QC. Who chooses the G.P? The solicitor or the clients representative?

[bednobs]

a) no
b) if the demetia has already cause loss of mental capacity, they can't make a will
c) see above

[Barmaid]

A - no

B - no. A GP does NOT have to be present. However, if the testator is very elderly or if there are doubts about his/her capacity, it is a "good idea", to adhere to the golden rule and seek the advice of a medical professional as to capacity. Failure to do so does NOT invalidate the Will however.

C N/A

[woofgang]

Answers according to UK law.
a, no
b, no
c, see b

A will can be challenged on the basis, not that the writer had dementia, but that he writer was coerced into making the will provisions that they did because they had dementia.

[Buenchico]

In response to Bednob's post:
a) Correct
b) Correct
c) Correct

My will names five beneficiaries. Not one of them is a relative of mine. I've not given any reasons and there's absolutely nothing to say that I should have done so. (Indeed, as the former MD of a will-drafting company, I would strongly advise against anyone ever putting anything into their will that attempts to explain their decisions. It could lead to problems after their death).

[Canary42]

QA: I have just made a Will and my solicitor recommended an accompanying document (single page) to pre-empt any challenge to the Will. It is not mandatory however.

[Barmaid]

Not quite true Woofgang. IF the dementia is such that it robs the testator of testamentary capacity it is not necessary to prove coercion. A testator should know (according to Banks v Goodfellow) a) the nature of the act in which he is engaged and its effects b) the extent of his assets c) the claims to which he ought to give effect and none of the above shall be affected by insane delusions.

[Barmaid]

Chris, depends what is said and why - in appropriate circumstances it may well be sensible. It will not help for INheritance act claims (seen as "self serving"), but otherwise may assist.

[woofgang]

so what happens Barmaid, if someone has dementia and fails the test of knowing the extent of their estate and the claims to which he/she ought to give effect, but expresses the firm wish and intention to make a will? Can you say (if you don't mind, its just for interest) what is meant by "claims to which he ought to give effect"? I think I understand what it means but would be grateful for the info.

[bednobs]

barmaid, i don't really understand the language you have used - is my answwr b correct?

[Barmaid]

@ Woofgang - claims to which they ought to give effect basicially refers to people to whom they ought to give consideration in making bequests. For example if someone makes a Will leaving out their son on the basis they have simply forgotten they exist that might be open to challenge. That is not to say they MUST include them, but they must give consideration to including them. So if they decide NOT to include them on the basis that they have already been well provided for or on the basis that they have had no relationship for the last 10 years, that will be fine.

If they are unable to ascertain the extent of their assets or unable to appreciate the claims to which they ought to give effect, but expresses a wish to leave a Will, the legal adviser would be well advised to seek medical advice as to testamentary capacity and if this is in the negative should consider an application for a statutory will.

@bednobs - yes technically your answer is correct, but the test is loss of testamentary capacity and not mental capacity (although the two are often synonymous). It doesn't follow however, that someone with dementia cannot make a Will.

[bednobs]

thankyou for explaining :)

[woofgang]

thanks Barmaid, that's kind of what i thought, final question if you are feeling patient, does a statutory will have more or less the same effect as intestacy or can the testator still express some of their own wishes?

[Barmaid]

No, a statutory Will is one made on order of the Court. It will be based on evidence as to the testator's life. So it will not automatically follow intestacy. The test is "best interests of the testator", so for example, a statutory Will may leave a legacy to a carer or friend on the basis of "doing the right thing". Or a charity if there are no close relatives for example - a testator who had significant mental health difficulties had a sw made which left half of his estate to close relatives and half to a mental heath charity.

Regard is always given to the testators wishes - these often take the form of a previous Will which for some reason or another will not have full effect. ANY written statement of the deceased will have sway with the court.

[Peter Pedant]

O God I told my lucky would-be heirs if they were and for how much and why. Not as in why, do you agree, but why- this is what I want

[Peter Pedant]

BM has as ever been helpful and deserves not supplementaries but a gold star for her fridge

and Buenchico

[Manymoves]

Thank you ALL for your input tonight. I think by asking single questions as short as possible is more helpful. I am sure more questions will come out of the woodwork so "same place, same time" next Wednesday. Enjoy the bank holiday as I have a special birthday party on Monday 26th.

[Barmaid]

I still think you should take proper legal advice. YOu're just nibbling round the edges asking one question a week on here. A lawyer who knows what they are doing will point in the right direction of a claim straight away. I have an idea, but I haven't seen the papers. Instruct a lawyer asap.

[woofgang]

Thank you BM, I hope I never need the info but its nice to know....

[Manymoves]

I am still waiting for my Father's medical records from London. If they will not send them direct to me, they will send them to my GP. I have taken the 1st appointment with my GP which is not until 6th September! 3 weeks since I asked.

[bednobs]

the DPA allows for 40 working days to get medical notes (about 8 weeks)