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Wills - Still On Going For Me
QA. Is it true if someone want to exclude a relative from their Will that they have to write a 3 page document explaining why?
QB. If a person has Dementia does a G.P. have to be present when the Will is drawn up?
QC. Who chooses the G.P? The solicitor or the clients representative?
QB. If a person has Dementia does a G.P. have to be present when the Will is drawn up?
QC. Who chooses the G.P? The solicitor or the clients representative?
Answers
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A - no
B - no. A GP does NOT have to be present. However, if the testator is very elderly or if there are doubts about his/her capacity, it is a "good idea", to adhere to the golden rule and seek the advice of a medical professional as to capacity. Failure to do so does NOT invalidate the Will however.
C N/A
B - no. A GP does NOT have to be present. However, if the testator is very elderly or if there are doubts about his/her capacity, it is a "good idea", to adhere to the golden rule and seek the advice of a medical professional as to capacity. Failure to do so does NOT invalidate the Will however.
C N/A
In response to Bednob's post:
a) Correct
b) Correct
c) Correct
My will names five beneficiaries. Not one of them is a relative of mine. I've not given any reasons and there's absolutely nothing to say that I should have done so. (Indeed, as the former MD of a will-drafting company, I would strongly advise against anyone ever putting anything into their will that attempts to explain their decisions. It could lead to problems after their death).
a) Correct
b) Correct
c) Correct
My will names five beneficiaries. Not one of them is a relative of mine. I've not given any reasons and there's absolutely nothing to say that I should have done so. (Indeed, as the former MD of a will-drafting company, I would strongly advise against anyone ever putting anything into their will that attempts to explain their decisions. It could lead to problems after their death).
Not quite true Woofgang. IF the dementia is such that it robs the testator of testamentary capacity it is not necessary to prove coercion. A testator should know (according to Banks v Goodfellow) a) the nature of the act in which he is engaged and its effects b) the extent of his assets c) the claims to which he ought to give effect and none of the above shall be affected by insane delusions.
so what happens Barmaid, if someone has dementia and fails the test of knowing the extent of their estate and the claims to which he/she ought to give effect, but expresses the firm wish and intention to make a will? Can you say (if you don't mind, its just for interest) what is meant by "claims to which he ought to give effect"? I think I understand what it means but would be grateful for the info.
@ Woofgang - claims to which they ought to give effect basicially refers to people to whom they ought to give consideration in making bequests. For example if someone makes a Will leaving out their son on the basis they have simply forgotten they exist that might be open to challenge. That is not to say they MUST include them, but they must give consideration to including them. So if they decide NOT to include them on the basis that they have already been well provided for or on the basis that they have had no relationship for the last 10 years, that will be fine.
If they are unable to ascertain the extent of their assets or unable to appreciate the claims to which they ought to give effect, but expresses a wish to leave a Will, the legal adviser would be well advised to seek medical advice as to testamentary capacity and if this is in the negative should consider an application for a statutory will.
@bednobs - yes technically your answer is correct, but the test is loss of testamentary capacity and not mental capacity (although the two are often synonymous). It doesn't follow however, that someone with dementia cannot make a Will.
If they are unable to ascertain the extent of their assets or unable to appreciate the claims to which they ought to give effect, but expresses a wish to leave a Will, the legal adviser would be well advised to seek medical advice as to testamentary capacity and if this is in the negative should consider an application for a statutory will.
@bednobs - yes technically your answer is correct, but the test is loss of testamentary capacity and not mental capacity (although the two are often synonymous). It doesn't follow however, that someone with dementia cannot make a Will.
No, a statutory Will is one made on order of the Court. It will be based on evidence as to the testator's life. So it will not automatically follow intestacy. The test is "best interests of the testator", so for example, a statutory Will may leave a legacy to a carer or friend on the basis of "doing the right thing". Or a charity if there are no close relatives for example - a testator who had significant mental health difficulties had a sw made which left half of his estate to close relatives and half to a mental heath charity.
Regard is always given to the testators wishes - these often take the form of a previous Will which for some reason or another will not have full effect. ANY written statement of the deceased will have sway with the court.
Regard is always given to the testators wishes - these often take the form of a previous Will which for some reason or another will not have full effect. ANY written statement of the deceased will have sway with the court.
