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Q&A on Wills and Power of Attorney

April 2012

Solicitor Andrew Raftery answers questions on wills, estates and power or attorney law. Solicitors Andrew Raftery

Q. My mother is 90 years old and has been diagnosed with dementia. I understand that because she has dementia I cannot apply for a Power of Attorney, as she may not have the mental capacity to understand what a Power of Attorney entails. I therefore understand that I cannot step in to assist her with the management of her finances?

A. In order for someone to sign a Power of Attorney a Solicitor must be satisfied that they have the mental capacity to do so.

Firstly, a Solicitor must be satisfied that your mother understands that a Power of Attorney gives her attorney the power to oversee the management of her finances. This includes the Power to withdraw money from her bank account and even the power to sell her home, if this is in your mother’s best interests.

A Solicitor must be satisfied that your mother has an understanding of the extent of her property including the assets and liabilities she has.

Your mother must be able to confirm that she trusts her proposed attorneys to do what is in her best interests.

Also a Solicitor must be satisfied that no-one has put your mother under any undue pressure to agree to a power of attorney.

Just because your mother has been diagnosed with dementia, we should not automatically assume that she lacks the mental capacity to sign a power of attorney.

Given that your mother has dementia, it may be advisable to ask her doctor to complete a mental capacity assessment and advise whether they believe you mother has mental capacity to sign a power of attorney. Doctors do often charge a fee for this service.

Provided your mother has the necessary understanding to sign a power of attorney then there is no reason why a Power of attorney cannot be completed.

If however, your mother does not have mental capacity, based on the above points, then you can still apply to oversee the management of her finances. You would need to apply to the court of protection to be appointed as your mother’s deputy.

 

Q. My uncle recently died and left the entirety of his fairly sizeable estate to a charity. I had not seen my uncle for many years, but I have been informed that his previous Will left a large proportion of the estate to me. He changed his Will approximately 6 months prior to his death leaving everything to a charity. Can I challenge the Will?

A. There are only certain circumstances in which you can successfully challenge a Will.

If you feel that you have been unfairly left out of the Will this is not sufficient grounds for legally challenging a Will.

The grounds on which a Will can be challenged include:

  1. Undue Influence – This means that you uncle had been put under pressure or coerced into changing his will, when he in fact did not wish to do so.
  2. Insufficient Mental Capacity – This means that when your uncle signed his will his mental state was such that he did not have a sufficient understanding of his assets and the consequences of making a will.
  3. Proprietary Estoppel – There are a very limited set of circumstances in which a Will may be challenged if the individual who has been left out of the Will had relied on the promise of inheriting money to their detriment.
  4. If you are a dependent of the individual has passed away (i.e. a spouse or a dependent child) and no provision has been made for you then you can bring a claim against the estate under the Inheritance (Provision for Family and Dependents) Act of 1975
  5. Improper Execution – You can challenge the validity of a Will if it has been improperly signed or witnessed
  6. Fraud – If you believe the Will to be a forgery.

If you believe any of the above points apply then there may possibly be grounds for challenging the Will. It would be advisable to consult a Solicitor as soon as possible to discuss the matter further.

 

Q. A friend of mine has recently bought a ‘‘Do it yourself’’ Will from a stationary shop. He has told me not to waste money on a Solicitor to prepare a Will and that I should just buy a DIY Will too! He has told me that a Solicitor would charge legal fees of about £500 just to make a straightforward Will.

A. Your friend is mistaken that a Solicitor would charge that amount of money just to prepare a straightforward Will. This firm, and many other firms of Solicitors, would charge considerably less than £500.

‘‘Do it yourself’’ Wills in some circumstances can cause difficulties. This is because when legal documents are drafted by people who are not legally qualified, they sometimes contain unintentional errors.

To give a few examples;

Executors are not properly appointed. The Exector(s) is/are the individual(s) you appoint to be responsible for overseeing the administration of your estate on your death and ensuring that the terms of your Will are carried out correctly.

Quite often with DIY wills, clauses are drafted in such a way that they leave room for ambiguity and make the Will vulnerable to being challenged.

The Wills are also sometimes not properly executed. This means they have not been signed and witnessed in the correct manner.

If you wish to have the peace of mind of knowing that your Will has been drafted in such a way that it is legally watertight and that your estate Will pass to the individual(s) you desire on your death, then my advice would be that you invest in the services of a legal professional and instruct a Solicitor to prepare your Will.

The costs of rectifying mistakes made in home made Wills frequently exceed the costs of instructing a Solicitor to prepare a Will on your behalf.

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