Fluctuating mental capacity and making a Will

Making a Will is often a straightforward process. A person decides who they want to benefit from their estate, appoints trusted executors, and records those wishes in a legally valid document.

Sometimes, however, there is an added difficulty. A client may be able to make clear, reasoned decisions on one day, but be confused, tired or unable to weigh up information the day after. This is commonly described as fluctuating mental capacity. It can make the preparation of a Will more delicate, more time-sensitive and more important to record properly.

What is fluctuating mental capacity?

Mental capacity is decision-specific. This means that a person may have capacity to make one decision but not another, depending on the complexity of the decision and the information involved.

It is also time-specific. A person’s ability to understand, retain, use or weigh information, and communicate their decision, may vary during the day or over a longer period. Illness, dementia, medication, pain, infection, fatigue, grief, anxiety or a temporary medical episode can all affect the clarity of someone’s thought processes at any given time.

Someone with fluctuating capacity is not automatically unable to make a Will. The key question is whether they have the required capacity at the time they give instructions and at the time they sign the Will.

Why Wills need particular care

To make a valid Will in England and Wales, a person must have ‘testamentary capacity’. The test for this requires them to understand the nature and effect of making a Will, have a broad understanding of the extent of their assets, consider the people who might reasonably expect to benefit, and not be affected by a disorder of the mind which influences the decisions made in the Will.

Where capacity fluctuates, timing can become critical.

A client may be perfectly capable of explaining their wishes in the morning, but unable to manage the discussion later in the day. They may understand their family circumstances during one meeting but become confused at a later appointment. They may be able to describe what they own in broad terms, but only when they are well rested, free from infection, or not affected by strong medication.

This can create practical complications. A solicitor may need more than one meeting in order to help someone to make a Will which will be legally binding. Instructions may need to be checked carefully. A medical opinion may be sensible, particularly if the client is elderly, seriously ill, has a diagnosis such as dementia, or there is likely to be disagreement within the family.

The risk after death

The difficulty with capacity disputes is that they often arise when the person whose capacity is being questioned is no longer alive to explain their thinking.

After death, disappointed beneficiaries may look closely at the circumstances in which the Will was made. If the final Will leaves someone out, changes a long-standing pattern of gifts, benefits one person substantially more than expected, or was made shortly before death, questions may be asked.

Fluctuating capacity can make those questions harder to answer. Medical records may show periods of confusion as well as periods of clarity. Family members may have seen the person at different times and formed different views. One person may say the deceased was lucid and settled; another may say they were forgetful, suspicious or unable to follow a conversation.

That is why good evidence of the person clearly having mental capacity and knowing what they wished to do at the time the Will is made can be so valuable later.

Can a Will be challenged?

Yes. A Will can be challenged if someone believes that the person who made it did not have mental capacity at the time the Will was executed.

However, suspicion is not enough on its own. A person challenging a Will usually needs evidence that raises a real question about capacity. This might include medical records, witness evidence, the contents of the Will itself, the circumstances in which it was prepared, or a clear change from earlier testamentary wishes.

If a genuine doubt is raised, a court may have to decide whether the person had testamentary capacity at the relevant time. In cases involving fluctuating capacity, the focus will often be on the precise timing of the instructions, the signing of the Will, and the quality of the evidence created at those points.

How a solicitor can help

A solicitor’s role is not simply to write down what a client says. Where capacity may fluctuate, the solicitor will take careful steps to understand the client’s wishes and to help ensure that any Will reflects a decision made with the necessary capacity.

This may include arranging meetings at the best time of day for the client, taking instructions in a calm and unhurried way, speaking to the client alone where appropriate, asking open questions, checking understanding, and keeping detailed attendance notes.

In some cases, the solicitor may recommend a medical capacity assessment. This can be particularly important where there is a diagnosis affecting cognition, a complex estate, an unexpected change in beneficiaries, family tensions, or a concern that the Will may later be challenged.

The solicitor can also advise on the wording of the Will, explain the effect of previous Wills being revoked, consider whether a letter of wishes would be helpful, and make sure the signing process is carried out correctly.

A Will that has been drafted by a solicitor is much harder to challenge on grounds of capacity than a do-it-yourself Will because of all the steps a solicitor needs to take to ensure that a client does have capacity, if there is any doubt.

The courts have said that where an experienced solicitor has written the Will, there has to be strong evidence to show a lack of capacity.  This is another good reason why people choose to have their Will prepared professionally.

Acting sooner rather than later

If there are concerns about fluctuating mental capacity, it is usually better to take advice sooner rather than later. Delay can make matters more difficult, particularly if the client’s health is changing or if there are likely to be disagreements after death.

A carefully prepared Will, supported by clear evidence of capacity, can reduce the risk of uncertainty and help protect the client’s wishes. It can also give family members and executors greater confidence at what is often a difficult time.

Where mental capacity is likely to be an issue, professional advice is not just useful, it is crucial. It may be the difference between a Will that gives effect to a person’s wishes and a dispute that could have been avoided.

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This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek advice specific to your own circumstances. Fraser Dawbarns LLP is always happy to provide such advice.