The following Private Client guidance note provides comprehensive and up to date legal information covering:
In order to make a valid Will, the testator must satisfy a capacity test on two separate occasions:
when they give instructions for the drafting of the Will or at the time it is written or typed out by the client themselves
at the time of executing the Will
If there is no capacity at either time, the Will may be invalid. The problem can be that in between the time of instructions and the execution of the Will capacity diminishes or disappears. The capacity required at the time of execution can be less than that required at the giving of instructions but in such circumstances the testator must still recall the instructions and that the Will that is being executed complies with those instructions.
A difficulty that the practitioner will come across with elderly clients is that the instructions may come from a third party. There is nothing inherently wrong with this but the greatest caution needs to be exercised and the principles referred to in Parker v Felgate cannot be applied without sufficient investigation. Not only does case law reflect this but the Solicitors Regulation Authority (SRA) made the warnings clear in both its previous Code of Conduct (IB(1.25)) and Handbook 2011. If there is any hint of suspicion, the court will not hesitate in ruling that the Will is invalid.
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