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15th October, 2014

Practitioners come together to discuss mental capacity issues


James Wallace, an associate in the Wills, Trusts & Tax team at Aaron & Partners LLP, joined with industry experts last month in London to attend the ‘Clarity on Capacity’ conference hosted by the Society of Trust and Estate Practitioners (STEP).

The purpose of the event was to consider the duties of will writers to assess the mental capacity of clients who are providing instructions for a will and the steps that practitioners can take to prevent a will being challenged on the grounds of lack of mental capacity after a person has died.

One of the key issues that can present considerable difficulties for practitioners in this area is the instruction of a medical expert to assess a client’s capacity before they make a will. This can be particularly problematic for a number of reasons including:

– The reluctance of clients to be assessed by a medial practitioner
– The potential costs of the assessment which can vary dramatically
– The difficulty of sourcing an appropriate expert to conduct the assessment in an environment where many GPs do not feel suitably qualified to do so
– The conflict between the will drafter’s obligation to draft the will in a timely manner and the requirement to take steps to ensure that the client has the necessary mental capacity to give instructions
– The precise manner in which instructions to the capacity assessor must be provided by the practitioner

It is of vital importance that will drafters understand their responsibilities in this area as failing to properly assess a client’s capacity can have serious implications, both for the will drafter and for the client’s family and loved ones who may become embroiled in a dispute about the will after the client has died.

James Wallace said following the conference, “I am pleased to see that STEP recognise the problems faced by practitioners involved in will drafting and welcome the ongoing assistance and guidance that STEP have committed to provide to their members with regards to assessing the mental capacity of their clients. I would advise anyone looking to make a will to make sure that the person they are instructing is suitably qualified as a properly drafted and considered will can be an extremely valuable asset, particularly for those who will be involved in your estate after your death ”.

If you would like an initial consultation about preparing a will or dealing with a will dispute please contact James Wallace on 01244 405555 or email [email protected]



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