Shrewsbury solicitor urges people to seek legal advice as capacity called into question
19th September 2015
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A Shropshire solicitor is appealing to elderly local residents and their families to seek proper professional guidance when drawing up or amending a will following a recent case which saw an individual’s mental capacity called into question and a subsequent challenge made to their dying wishes.

Pauline Davies, a wills and probate specialist at PCB Solicitors, is warning of the pitfalls of failing to obtain sound legal advice, particularly in cases where an individual may be suffering from a decline in mental abilities, and the devastating impact a potential dispute may have on their loved ones. 

Pauline’s warning comes after a ruling in which siblings were involved in a long-running battle over inheritance following their mother’s decision to change her will shortly before her death.  The changes to the will were made at home without any legal guidance and at a time when the testator was suffering from dementia – changes which were subsequently challenged on the basis that the individual lacked the mental capacity to make a valid will. 

However, upon rejecting the appeal, the Judge accepted that whilst there was evidence that the individual understood the direct consequences of leaving her estate in such a way, there was no legal requirement for her to understand the collateral consequences.

Pauline commented: “The difficulties arising from this case were compounded by the fact that the revised will was not drawn up, and executed, by a qualified solicitor.  Had this happened, advice and guidance on the laws relating to an individual’s capacity to make decisions on the distribution of their assets would have been shared and followed, which may ultimately have satisfied the beneficiaries and would not have led to the subsequent costly legal challenge. 

“The current law states that for a will to be valid, an individual must be able to comprehend the extent of his or her property or assets and be mentally capable of understanding what they are doing, but they are not legally required to actually remember the extent of their property or assets.  For relatives, this may seem unjust and deem to put their loved one’s decision-making capabilities into question – but ultimately this is the law and any challenges made to this are likely to be overruled.

“Drawing up a homemade will may seem like the simplest and most economical option at the time, but cases such as this highlight just how costly, both financially and emotionally, the consequences of this can be and so I would urge anyone looking to make a new will or amend an existing one to contact a member of our team on 01743 248148 to find out more.” 

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