Role of Will Writer in Assessing Capacity

The role of the legal service provider in assessing capacity has been a long standing debate in the profession, especially concerning Wills and probate issues that generally provide services to more vulnerable individuals.

During the second Wills and Probate Roundtable, the concept of how a firm establishes their threshold of understanding for clients and the issue of risk was considered by the table.

Many were concerned with the lack of consistency and difference in approaches, adopted by firms supplying similar services, used to consider mental capacity within a client.

One of the main areas of discussion concerned how a firm should record their acknowledgement of capacity and how in depth this should be.

The way a firm insures themselves against attack was hotly debated. Some at the table believed that the expertise and experience of the practitioner could be enough to recognise capacity. They would informally look for warning signs within the work; if a client wanted to cut their children out of a Will and leave it to a neighbour for example. They would then flag the issue and follow procedures. It would be at this point that official records would be kept.

Others believed that a firm needs to be a lot more proactive in recording their attempts to elicit a threshold of understanding before carrying out the work. Some agreed that a standard proforma of questions, asked in advance of the work, could be enough to decide whether an individual possessed capacity. The paper trail would be able to insure them in the future if the documents were contested.

A huge barricade to this sound argument regarded price. Although many were eager to improve this area, anxieties around the fact that the sector is so price sensitive could prevent firms from adopting additional work that would increase costs. When only 55% of UK adults make a Will, increasing the price because a service consultation takes longer, could encourage more people to abstain and business to be lost.

With the statistic that High Court disputes concerning Wills have increased by over a third in the last five years, the importance of ensuring the legal document’s legitimacy is vital; being confident that capacity was considered and the firm is able to prove this will be important going forward.

As one of the roundtable representatives highlighted, if a technicality can be established because no evidence of capacity can be proven when the document is created, people will then have more power to contest in the future.

In addition to acting in the best interests of the client, having a clear procedure to test for capacity will help to indemnify the company in the future. Whilst price may put many off, the reputational and financial damage could far outweigh the present risks.

Does your company have a clear procedure in place to assess the capacity of all customers? Should more be done before legal documents are drawn up? Should this be the role of the legal service provider?

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