Bromley Solicitors

WILLS & PROBATE FAQS – BROMLEY SOLICITOR

What are the legal requirements for a will?

• In writing – this can be on almost any piece of paper.

• Witnesses – the will needs to be witnessed by two persons who have ‘mental capacity’ and are fully sighted.

• Without duress or undue influence – the person making the will must make it free of duress or undue influence.

What is the definition of mental capacity?

Mental capacity can be defined as the ability of a person to make decisions by themselves  In the context of writing a will, the person making the will should have the ability to understand what a will is, why they are making it and the consequences of it.  A lack of mental capacity can long-term, temporary and fleeting or something that happens from time to time.  The reasons for the lack of mental capacity are irrelevant.  Someone can lack capacity due to drink or drugs or by reason of some mental disorder.  Under the Mental Health Capacity Act, it is presumed that everyone has the mental capacity to take care of their own affairs and make decisions for themselves unless it can be shown otherwise.

I have a mental disorder where I have periods of normality and periods where I lack the mental capacity to make my own decisions.  How can I show that I have sufficient mental capacity to make my will?

If you have certain disorder where you lack mental capacity from time to time but not all the time, such as bipolar disorder, it is advisable to get a doctor’s report when you are going through a period of normality and intend to make your will, stating you have sufficient mental capacity to make a will.

What do you mean by duress or undue influence?

Duress is defined by Blackstone’s legal dictionary as “any unlawful threat or coercion used… to induce another to act [or not act] in a manner [they] otherwise would not [or would]“.  In the context of a will, this could include a verbal threats by others against the person making the will.  Undue influence in the context of wills can be defined as any acts of a person or advisor which psychologically influences or even dominates the person making the will such that the influential person or advisor receives an disproportionate amount of inheritance.

How often should I look at my will?

If possible, you should look at your will every five years and make any changes to take account of changes in your circumstances.  If you get married, divorce, buy property which has a significant value or have children, it is advisable to update your will as soon as possible.

Can I appoint legal guardians for my children in my will?

Yes, it is perfectly normal for parents of children under the age of 18 to appoint legal guardians and is in fact highly advisable to do so.

The wilsl & probate general page is here