With an aging population and the rise of dementia – which became the leading cause of death in men in the UK in 2022 – combined with the related rise in challenges against estates, there has never been a greater focus on Mental Capacity.

Practitioners need to be ever more careful when seeking to advise clients who have early diagnoses of degenerative issues. The “Golden Rule” established in Kenward v Adams (1975) suggests that a medical professional is called upon to give an opinion on capacity and witness a vulnerable testator’s Will. However, in day-to-day practice, a practitioner will know that clinicians are very wary of expressing an opinion on capacity. We see that many medical facilities have expressly forbidden their staff from witnessing documents for fear of being dragged into disputes and litigation.

The importance of safeguarding a Will is often overlooked. Wills can be stored anywhere from safe deposit boxes to desk drawers.

It is not uncommon for individuals to forget where theyhave kept their Wills, or to inform loved ones that a Will exists. This can lead to lost or misplaced Wills, causing distress to the family, and leading to legal complications when the individual passes away.

If a Will cannot be found after death, it is presumed to be revoked. This is a rebuttable presumption, subject to the deceased’s family being able to provide evidence proving the individual had no intention of revoking the Will. If the court is not convinced, the estate is distributed according to intestacy laws.

In the UK, this has given rise to specialist firms whose sole purpose is to assess capacity. These firms are generally staffed by social workers rather than medics with qualifications and life experience which allows them to come to reasoned decisions around capacity to make a Will and/ or capacity to grant a Power of Attorney. It should never be forgotten that the standards are different for each document. The common law test established in Banks v Goodfellow being the testamentary standard, with the Mental Capacity Act 2005 ruling Powers of Attorney.

A diagnosis of Dementia or any other degenerative disease of the mind should never be a barrier to good planning (especially during the early stages) and practitioners should not shy away from clients with these issues. But we should always be vigilant and ensure we are protecting the client, their families and ourselves by taking appropriate precautions when offering solutions.

I was successful in an application simply because the person had made a mutual Will, and the spouse’s Will was not revoked.

Such additional legal steps could be easily avoided, if only the Will had been kept in a secure location. This can be done personally, through a safe deposit box or home safe, or by entrusting it to another individual. Some even ask their lawyers to hold their Wills, though not all firms offer this service.

A more practical solution may be to use a professional thirdparty custodian service. These custodians ensure your Will is kept safe and accessible. It is not free, but the assurance that your Will is secure is invaluable. Then, individuals, knowing their Wills are safe, will be worry free, allowing them to truly rest in peace when the time comes.