Changing a will at 81 years of age

torrevieja

My father wants to change his will and i recently rang a solicitor to have this done and then he got back to say that that he would need a letter from his GP is this correct ?

He is fine health and mind wise then i read this :



http://www.telegraph.co.uk/news/uknews/law-and-order/10087754/Wills-are-valid-even-when-made-by-people-with-dementia.html

beechwood55

My mother in law made some changes to hers recently. She is 89. If her solicitor told her that her gp had to give a letter before she was allowed to change her will, she would be changing solicitors pretty damn quick!!

pudzey101

only talking from personal experience , my late father wanted to change his will and had to Visit his GP to make sure he was in good health , he did suffer from slight dementia but not to the extent which would provoke changing the will .

GP ruled he was in good enough health to make these changes and gave him the all clear .

Grolschevik

torrevieja wrote:

He is fine health and mind wise then i read this :

It's a 'checks and balances' thing to ensure or get an independent opinion on whether he's of sound mind or whether he may be susceptible to undue influence. Solicitors have a professional obligation to verify this. I'll try to dig out the relevant guidance.

torrevieja

beechwood55 wrote: »

My mother in law made some changes to hers recently. She is 89. If her solicitor told her that her gp had to give a letter before she was allowed to change her will, she would be changing solicitors pretty damn quick!!

i should say he is going to a new Solicitor and they requested it

Sue Pa Key Pa

I know nothing about the technicalities of the situation but nice to see that the solicitor has got the back of their client. Just double checking the situation

torrevieja

but this guy moved form more premises than i had hot dinners

then when dad wanted the house deeds it took years till eventually he got them

and when he was writing the original will the solicitor did not want to change what he had said

then he asked him for the orginal will 4 months ago he is still waiting

Jayop

Sounds to me like the solicitor on this occasion should be commended. If your father is of sound mind then the GP letter will be no problem to get and it could save you a world of hassle after with people possible claiming he wasn't.*



*I know nothing about the law.

Mr. Incognito

Thats normal procedure for elderly clients and a child getting uppity about it would raise alarm bells if I was the solicitor

PaulieBoy

torrevieja wrote: »

i should say he is going to a new Solicitor and they requested it

Should the will wind up in court after the demise of your father and a question were to be raised about the state of mind of your father when making those changes then the doctors opinion at the time of making the changes would be of critical importance.

Grolschevik

Grolschevik wrote: »

It's a 'checks and balances' thing to ensure or get an independent opinion on whether he's of sound mind or whether he may be susceptible to undue influence. Solicitors have a professional obligation to verify this. I'll try to dig out the relevant guidance.

HTML version was behind a login wall, but this'll do. Page 48 of this PDF if the link doesn't get you there directly:

https://www.lawsociety.ie/Documents/Gazette/Gazette%202009/JanuaryFebruary2009.pdf#page=50

Pro Hoc Vice

torrevieja wrote: »

My father wants to change his will and i recently rang a solicitor to have this done and then he got back to say that that he would need a letter from his GP is this correct ?

He is fine health and mind wise then i read this :



http://www.telegraph.co.uk/news/uknews/law-and-order/10087754/Wills-are-valid-even-when-made-by-people-with-dementia.html

Does your father live in either England or Wales?

Pro Hoc Vice

beechwood55 wrote: »

My mother in law made some changes to hers recently. She is 89. If her solicitor told her that her gp had to give a letter before she was allowed to change her will, she would be changing solicitors pretty damn quick!!

she can change her will but any solicitor doing so with out a letter from GP risks a negilance claim. Would you rather the solicitor does it right or sets up the will for a challenge and before you say no one will (forgive pun) so said the many families fighting it out in the Courts.

Steve

Is it not up to a plaintiff to prove legal incapacity in this case?

Pro Hoc Vice

Steve wrote: »

Is it not up to a plaintiff to prove legal incapacity in this case?

Yes, and who usually pays the costs of such a action. And discovery may and has proven that the deceased was suffering from reduced capacity. A simple letter from GP protects the solicitor. It would in my opinion be prudent in any case where person is over 55, to elimate any issue.

torrevieja

Pro Hoc Vice wrote: »

Does your father live in either England or Wales?

no he lives in Ireland i was just showing that example

Steve

All well and good, however, still extremely difficult to prove if a will was made in good stead.

Pro Hoc Vice

torrevieja wrote: »

no he lives in Ireland i was just showing that example

That example involved a case as decided in the High Court of England and Wales and while it may or may not reflect the law in Ireland it is only a statement of a case in a different jurisdiction. A solicitor is well advised as one of the many acts before drafting a will to seek a medical opinion of a doctor who is treating the testator. Of course that does not eliminate the requirement of the solicitor to judge for himself the ability of the person to validly execute a will.

A a principle a person with health issue may or may not be able to execute a will but a solicitor is well advised to as best as he can make sure it's done right.

Peregrinus

Pro Hoc Vice wrote: »

Yes, and who usually pays the costs of such a action. And discovery may and has proven that the deceased was suffering from reduced capacity. A simple letter from GP protects the solicitor . . . .

But, more to the point, it's in the client's best interests. After the client has died, somebody disadvantaged by the terms of the will has an obvious interest in challenging the will, and therefore an interest in challenging the client's capacity at the time the will was made. It makes perfect sense to anticipate such a challenge, and assemble evidence to show that the client did have the required mental capacity. That will help to head off any challenge from being made - most people will drop the matter once the letter is produced - and to defend any challenge which does make it to court. This gives the client reassurance that the new will will be valid and effective and not vulnerable to challenge, which is presumably the outcome they hope for when making it.

This isn't about protecting the solicitor, except secondarily. It's mainly about arranging the client's affairs so that the client's objectives are acheived. That's what solicitors do.

beechwood55 wrote: »

My mother in law made some changes to hers recently. She is 89. If her solicitor told her that her gp had to give a letter before she was allowed to change her will, she would be changing solicitors pretty damn quick!!

If her solicitor doesn't raise this issue with her, she should find a new solicitor. The one she has now is not thinking about how best to give effect to her wishes.

4ensic15

I know a man who went to his doctor, had his mental capacity checked. He then went to his solicitor and made a will. next, he went directly to another doctor and again had his mental capacity checked. He then wrote a letter to the solicitor and the executors saying what he had done. He wanted no challenges on the grounds of capacity.

nuac

4ensic15 wrote: »

I know a man who went to his doctor, had his mental capacity checked. He then went to his solicitor and made a will. next, he went directly to another doctor and again had his mental capacity checked. He then wrote a letter to the solicitor and the executors saying what he had done. He wanted no challenges on the grounds of capacity.

Unless the client is in hospital, experienced solicitors would have relied on the opinion of the testator's usual GP. The GP usually would have known the testator for some time. If the solicitor is sent for following the GP's house call there may not be time for letters. Solicitor has to get out to the house and do the best he/she can on the information available. Even if the solicitor has some doubts about capacity there is a duty to draw the will. The solicitor writes up a full instruction and attendance notes to be ready for any challenge

A solicitor does not have the luxury of waiting for letters or reports. The grim reaper may not wait.

The position is more complicated in areas where a locum service do house calls outside normal GP hours. They may not have met the testator before. Some may be reluctant to talk to a solicitor, or can be hard to find.

In hospitals there is usually a protocol agreed with the local bar assocation. Ok to be obtained from consultant in charge and ward manager. Unlikely to be any written reports, just entries in patient's records. If if turns out that a Registrar rather than the Consultant saw the patient that morning, the solicitor may become unpopular for insisting on a quick word with the Registrar

If the testator is in ICU, one of those monitors pinging away beside you, and the hospital chaplain has arrived - the solicitor has to do the best (s)he can.

AND if youi twig that the appointment has been made by the daughter home from the States, first time in ten years, and she starts suggesting to you what Dad really wants to do as she hovers just outside the ward.................................

Sleeper12

I think this is good practice. It's all well and good you saying that they are of sound mind and body but without the letter from the gp the will could be challenged in court. A simple gp letter now rules out a challenge at a later stage when you can't prove sound mind. It'll help protect you if you benefit from the will.

mikeymouse

[QUOTE=torrevieja;100856648]My father wants to change his will and i recently rang a solicitor to have this done and then he got back to say that that he would need a letter from his GP is this correct ?

He is fine health and mind wise then i read this :



http://www.telegraph.co.uk/news/uknews/law-and-order/10087754/Wills-are-valid-even-when-made-by-people-with-dementia.html[/QUOTE]

The fact it was you contacted the solicitor rightly caused alarm bells to ring.

Thoie

torrevieja wrote: »

i should say he is going to a new Solicitor and they requested it

Even more reason for a new solicitor, who has never met your father before, to request it. If it had been a solicitor who knew him for years, he might be able to notice if there was any deterioration in mental capacity, and make a judgement call on whether GP clearance would be a good idea.

A solicitor who's never met your father before has no idea if he's meeting him during a brief lucid stage or anything. Particularly when a son rings to make an appointment with someone neither of them have ever met for the purpose of making a new will. While you were just being nice and helping your father make the appointment, the solicitor doesn't know if you've got a gun to the head of a confused parent, forcing him to change things in your favour.

Peregrinus

When I was in private practice, it was standard protocol, when taking instructions for wills, to chat to the client for half-an-hour or so about his family situation, his objectives, his reasons for the provisions he wanted, etc before getting down to the business of taking formal instructions. Then we'd do an attendance recording our impressions of the client's grasp of his affairs, etc. And that was for clients that we already knew, in good health, and not particularly aged. The point of the attendance was to be able to give evidence as to the client's apparent capacity. If there were any real question about the clients capacity, or even the appearance of a question, then we'd definitely advise the client to obtain a medical opinion.

It's a solicitor's job to think about what could go wrong, and prepare for it. It might make clients uncomfortable to think that somebody might question whether they were a few sandwiches short of a picnic, but the truth is that somebody might.

torrevieja

Hi went to the doctor today about getting a letter for him to make a will etc he then days its up to the solicitor to make a request and then he would he checked by the doctor

I rang back the solicitor and he said most doctors would just write a letter but he obivlvisiuly was not
So my silictor said if ur dad wants to write the will anyway and then he can send in a reques from doctor he did ask me if my father was in good mind etc

Any views should I do that or get the request first

Thanks
quote="Peregrinus;100869783"]When I was in private practice, it was standard protocol, when taking instructions for wills, to chat to the client for half-an-hour or so about his family situation, his objectives, his reasons for the provisions he wanted, etc before getting down to the business of taking formal instructions. Then we'd do an attendance recording our impressions of the client's grasp of his affairs, etc. And that was for clients that we already knew, in good health, and not particularly aged. The point of the attendance was to be able to give evidence as to the client's apparent capacity. If there were any real question about the clients capacity, or even the appearance of a question, then we'd definitely advise the client to obtain a medical opinion.

It's a solicitor's job to think about what could go wrong, and prepare for it. It might make clients uncomfortable to think that somebody might question whether they were a few sandwiches short of a picnic, but the truth is that somebody might.[/quote]

Pro Hoc Vice

torrevieja wrote: »

Hi went to the doctor today about getting a letter for him to make a will etc he then days its up to the solicitor to make a request and then he would he checked by the doctor

I rang back the solicitor and he said most doctors would just write a letter but he obivlvisiuly was not
So my silictor said if ur dad wants to write the will anyway and then he can send in a reques from doctor he did ask me if my father was in good mind etc

Any views should I do that or get the request first

Thanks
quote="Peregrinus;100869783"]When I was in private practice, it was standard protocol, when taking instructions for wills, to chat to the client for half-an-hour or so about his family situation, his objectives, his reasons for the provisions he wanted, etc before getting down to the business of taking formal instructions. Then we'd do an attendance recording our impressions of the client's grasp of his affairs, etc. And that was for clients that we already knew, in good health, and not particularly aged. The point of the attendance was to be able to give evidence as to the client's apparent capacity. If there were any real question about the clients capacity, or even the appearance of a question, then we'd definitely advise the client to obtain a medical opinion.

It's a solicitor's job to think about what could go wrong, and prepare for it. It might make clients uncomfortable to think that somebody might question whether they were a few sandwiches short of a picnic, but the truth is that somebody might.

Who went to doctor to get the letter?

Thoie

torrevieja wrote: »

Hi went to the doctor today about getting a letter for him to make a will etc he then days its up to the solicitor to make a request and then he would he checked by the doctor

I rang back the solicitor and he said most doctors would just write a letter but he obivlvisiuly was not
So my silictor said if ur dad wants to write the will anyway and then he can send in a reques from doctor he did ask me if my father was in good mind etc

Any views should I do that or get the request first

If the solicitor is happy to draw up the will and get the doctor's approval a day or two later, then it's obviously OK. Don't wait a few weeks though - try to get back to the doctor asap after the solicitor's office. If that's all he went to the doctor for though, I hope he won't be charged again for a second visit!

torrevieja

He went with me to solicitors

Thanks for advice and pm folks i just did notvwant to go to solictors if i was suppose to go to doctors

Plan is to get it done next week then he goes on holidays fir two weeks and will arrange it with doctor when he getd back

Thanks for everything folks


e="Thoie;100873115"]If the solicitor is happy to draw up the will and get the doctor's approval a day or two later, then it's obviously OK. Don't wait a few weeks though - try to get back to the doctor asap after the solicitor's office. If that's all he went to the doctor for though, I hope he won't be charged again for a second visit![/quote]