Problem with FIL will - establishing capacity

[HopelesslyDevoted2]

FIL has dementia- diagnosed last year. He struggles with conversations and memory. However he understands the need for a will and wants to make one. MIL’s will has been drafted. Solicitor won’t go ahead will FIL’s until it’s assessed that he had capacity to go go ahead. Solicitor drafting will says they don’t do this, and suggested FIL asked doctor. Doctors surgery say they don’t do this! Anyone found this to be an issue. My understanding is that a professional such as GP or solicitor could assess this. I know another person who’s GP (different surgery) did assess and sign to say someone with dementia diagnosis had capacity. Not sure of where to go from here!

Really not sure on that one sorry. Have you tried posting I the legal section? You might get a few more responses in there.

There are a few businesses who specialise in this, eg mentalcapacityassess.co.uk/testamentary-capacity-assessment/
No endorsement from me, never had anything to do with them, but have a look. The website is informative anyway.

On a practical level, is the will in any way controversial, and is anyone likely to feel aggrieved or left out? Because capacity only becomes an issue after death if someone wants to make trouble and thinks that they would be better off under the intestacy rules. If, for example, it's a standard estate with everything going to the spouse, or failing that equally to the kids and it's fundamentally a happy family then no one is likely to challenge the will anyway.

Consultants in old age psychiatry will assess testamentary capacity. Does your FIL see one. If not your solicitor may know one locally he can write to. There would probably be a charge for this.
Capacity is a decision specific thing and to have testamentary capacity you must be able to understand exactly what assets you have and why you are leaving them to particular family members. It requires a reasonable level of intact cognitive functioning.
@MurielSpriggs
It may be that no one in the family will question the Will after he dies but any reputable lawyer shouldn’t draw up a will for someone who lacks capacity.

Hi @RunnerDown

I agree that solicitors would be reluctant for professional-conduct reasons. But if it's a simple will, the family are confident that the testator is up to it, there won't be any arguments after death, and the alternative is the testator dying intestate (and that would be a problem) then a home-made will might be worth considering. (But that's a lot of "ifs"!)

Capacity is time and decision specific.

Basically it's the solicitors job to assess FILs capacity at the time the will is being signed.

The solicitor just needs to be satisfied for themselves that FIL understands the will and it's contents and can retain his understanding of the will and it's contents long enough to make an informed decision and sign it.

Someone else writing something at a different point in time on a different day to 'prove' to the solicitor he has capacity wouldn't be worth the paper it's written on if anyone challenged it.