Having a will is important for every adult but is even more so as you enter retirement and start to put your affairs in order. With free time on your hands, it is a good opportunity to make an appointment with your solicitor to make or update your will and plan for your old age while you are in good health and can think clearly about the issues involved.

It is natural to put off making a will thinking that there is always time to do it later, but a sudden change in health can occur without warning. Without a valid will, the law dictates who inherits your estate under the intestacy rules.

Testamentary capacity

The law requires certain conditions to be satisfied when you make your will, otherwise it is unlikely to be valid. If your will is declared invalid, the statutory rules of intestacy apply which means your nearest living relatives will inherit your estate – something which may not be in line with your wishes.

One of these requirements is that you have what is known as ‘testamentary capacity’ at the time you make your will. To have testamentary capacity, you must be able to understand the nature and effect of making a will, the extent of your estate and the impact of your proposed instructions. Also, you should not have a mental illness which influences you to make gifts you would not have made otherwise.

In the case of an elderly person, mental capacity is more likely to be an issue because of the increase in dementia, Alzheimer’s or other illnesses affecting cognitive abilities. The courts have even held that a will made while someone was suffering from severe grief was invalid because of a lack of testamentary capacity.

If you are thinking about a will but you are concerned about your mental health and your ability to make a will, it is vital to take expert specialist advice as the evidence of a doctor may well be needed for your protection.

When medical evidence is necessary

If your solicitor is concerned about your testamentary capacity to make a will, or thinks there is a risk a relative could ask the court to declare your will invalid because you lacked testamentary capacity, they will ask a doctor to provide evidence that you have capacity to make a valid will.

In law, this is known as the ‘golden rule’ and requires your solicitor to have your will approved or witnessed by a doctor who must be satisfied of your capacity and understanding in making your will if you are elderly or suffer from a serious illness. The doctor must record and report their examination and findings about your capacity.

This evidence could make all the difference between the smooth administration of your estate after your death and an expensive dispute involving allegations that you lacked capacity.

Duress and undue influence

There is absolutely no reason why you should not discuss your will with your loved ones, in fact most older people prefer to talk things over with their family. You will want to discuss who you would like to act as your executors and you may, for instance, ask your children if there are any specific items of jewellery, furniture or artwork they would like to be left.

However, enlisting their help and asking for their preferences is one thing but there must be no evidence of duress, or undue influence which amounts to coercion, in that it overpowers your own wishes; the court is likely to declare the will invalid.

The words or behaviour used may not be outright blatant duress, it could be a ‘drip drip’ feed of subtle undue influence leading you to make a gift you would not otherwise have made. In one case, a child gave her parent deliberately incorrect information to secure her inheritance. The court said this amounted to undue influence.

You should also be wary of making gifts to non-family members who you may not have known for long. Elderly people, particularly those who are lonely, are often particularly vulnerable to being befriended by individuals who have ulterior motives. There is nothing wrong with leaving anything to people who are kind to you, but if there is any evidence of undue influence such a gift could be held invalid.

Disinheriting a child

Exercise caution if you are thinking about cutting a child out of your will. There has been a run of cases where adult children have brought legal claims for money out of their parents’ estates, even in situations where they have been estranged for many years.

Unless there is clear evidence that your estrangement has been caused solely by their own conduct or behaviour, and you have not been supporting them financially, it is unlikely your son or daughter could make a successful claim against your estate. Traditionally, the law allows you to leave your estate to anyone you choose. However with any rules there are exceptions, so if you have any doubts about disinheriting a child speak to our specialists.

If you would like more information or advice about the issues raised in this article, or any aspect of family law please contact our expert legal team on 02080040065, by email at [email protected] or using the form below.

The contents of this article are general information only. The information in this article is not legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm.