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Case Study – Wills And Mental Capacity

More and more, we are seeing an increased number of Larke v Nugus requests asking that more information is provided on the circumstances surrounding the drafting and execution of the will.

The increased volume of these types of requests puts you, the professional, on notice that the content of the will could be brought into question. It is then our job to inform your insurer of this as a potential claim. Increasingly, the background of the matter is that the client’s mental capacity to affect a will – or more likely to change and amend an existing will – is being questioned.

As part of an effective risk management system, we would suggest that the client’s own GP is asked to provide written confirmation that there are no signs of any deterioration, or indeed a diagnosed condition, which might affect the decision making before any work is undertaken. Importantly, when your Professional Indemnity Insurance is due for renewal, you are able to demonstrate to underwriters that you are doing everything you can to minimise risk.

Finally, should this develop into a formal claim, sometimes many years ahead, you could have a great defence.