Private Client Team
Private Client Team

Private Client Team Blog

The experienced practitioner's view



Archive for the ‘Living Will’ tag

When Wills Can Leave A Bitter Legacy

without comments

Simon Mee, a specialist in solicitors, Charles Lucas & Marshall’s wills and estate planning team, looks at problems which can arise when there is a legal dispute over a will.

Wills Can Leave A Bitter Legacy
Wills Can Leave A Bitter Legacy

A Will allows a person to show how they wish their assets to be distributed following their death.  In general any person over the age of 18 and of sound disposing mind may make a Will. The first question to consider will be whether the Will was correctly executed and therefore can be said to be valid.  Secondly, it will be necessary to consider whether a person was of sound disposing mind at the time the Will was made.  Did they have the mental capacity to complete the Will? Disputes over the issue of capacity to complete a Will are becoming increasingly common and are likely to continue to rise in number for various reasons including the increase in the number of elderly persons suffering from dementia and lengthening average life expectancy.

To have testamentary capacity a person must understand the nature of the act and effect of making a Will. They must understand the extent of the property given by the Will and have an appreciation of the persons they should consider in distributing their estate. They must also not be affected by any disorder or delusion which would prevent them understanding the terms of the Will.

In addition to testamentary capacity it is also necessary for the person to have known and approved of the contents of the Will. This will in many cases be linked to the question of testamentary capacity, but should also be considered separately.

It is possible to challenge a Will on the basis of undue influence. To be successful it would be necessary to prove actual coercion of the testator.  This goes further than merely influencing the decision making by suggestion or otherwise and effectively requires sufficient influence to cause a loss of free will.

Each case will depend on its own facts and the starting point will be to investigate the circumstances in which the Will was signed. A series of questions should be asked e.g. who prepared the Will and who was present at the time, whether there are any previous wills and whether a medical practitioner provided a report of the person’s capacity at the time the will was made?

Another common problem area is when a couple have not married but lived together for many years and one of the partners dies without making a will.  If a person dies without a Will they are said to be “intestate” and their assets will pass under the “intestacy rules”.  These distribute the estate amongst the deceased’s relatives in a specific order. The surviving partner may be eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.  Partners who have lived in the same household for two years as a husband wife or civil partner of the deceased may be entitled to make a claim for reasonable financial provision.

Reasonable financial provision is defined as “such provision as would be reasonable in all the circumstances for his maintenance”.  The Court will look at a variety of factors to assess this including the financial resources and needs of the parties and any obligations and responsibilities the deceased may have had.  There is a time limit for making the claim.

For further information contact Simon Mee on 01635 521212 or simon.mee@clmlaw.co.uk

Written by Simon Mee

September 6th, 2011 at 3:17 pm

Posted in News,Wills

Tagged with ,

What is a Living Will?

without comments

Simon Mee, a wills and estate planning specialist with solicitors, Charles Lucas & Marshall explains why people may want to consider a ‘living will.’

Simon Mee

Simon Mee

When a person is unwell they will usually talk with their doctors to agree a course of treatment.  However, if, for example, a person is unconscious following an accident or is unable to communicate their wishes during the later stages of an illness, doctors will need to make the decisions themselves.  They must act in the patient’s ‘best interests’ and will assess those best interests by referring to a variety of factors.

However, a person may have made an advance decision to refuse medical treatment which the medical team must follow whether or not they believe it is in the best interest of their patient.  

The term Living Will has no legal meaning, but is often used to refer to these advance decisions or sometimes, advance statements. These are not binding decisions to refuse treatment but provide an indication of the patient’s wishes which healthcare staff should take into account when assessing a person’s best interests.

How do I make an advance decision?

An advance decision to refuse treatment is binding and must be followed, provided it is valid and applicable.  An advance decision can be made invalid by withdrawing the decision, appointing one or more attorneys under a Personal Welfare Lasting Power of Attorney or by acting in a way clearly inconsistent with the decision.

An advance decision must also be applicable, that is, it must state precisely what treatment is to be refused ie a statement giving a general desire not to be treated is not sufficient.  Therefore, an advance decision is usually most appropriate where a person has been diagnosed with a particular illness and the course of that illness can be defined, or if a person has strong feelings or beliefs about a particular treatment, such as blood transfusions.

While an advance decision need not be in writing and may be verbal, a written record should be kept, either in a person’s healthcare record or by preparation of a specific document. However, an advance decision which refuses life sustaining treatment must be in writing and signed and witnessed.

Only if a healthcare professional is satisfied an advance decision exists, is valid and is applicable must they follow it and not carry out the relevant treatment.

Are there any alternatives?

Advance decisions are especially useful where a particular situation is likely to occur in the course of an illness or strong feelings are held about a particular treatment.

Following the Mental Capacity Act 2005 it is possible to appoint a person, called an attorney, to make health and welfare decisions if you are incapable of making them yourself. This could include the ability to refuse or give consent to life sustaining treatment. This Personal Welfare Lasting Power of Attorney provides an opportunity to appoint a person to make a wide range of decisions about care and treatment and can provide greater flexibility than an advance directive.

For further information contact Simon Mee on 01488 682506 or simon.mee@clmlaw.co.uk

Written by Simon Mee

August 17th, 2011 at 11:42 am