Wills and capacity

[miimblemomble]

Looking for some lawyerly input.

My PIL (really FIL) are updating their wills. MIL has Parkinson’s, and dementia. Her understanding of what’s going on changes from day to day. I personally don’t think she has capacity any longer, but it’s not my call.

FIL has no neurological conditions, and is in good health. However - speaking bluntly - he’s just not clever enough to understand the implications of or the wording in the draft will that the lawyer has sent. He gets confused very easily, has very little “book learning”, cannot understand sophisticated or legal language. The intricacies of “ if this happens, then that happens and this means that this other thing will happen” are just beyond him. DH and DSIL are going over it with him over and over again to try and be sure that he knows what he is agreeing to: they don’t want to be accused of misleading him, further down the line. Throughout their married life, MIL was the administrator and he did very little of this.

My question is, from a legal POV how does the lawyer decide that he is able to sign a new will? There’s no medical reason why he shouldn’t understand, and he’s not that old (70’s), but his brain just doesn’t work this way.

If the solicitor has doubts about your father in law's capacity they should seek a medical opinion.

Why is it so complicated? Are we talking about loads of money or beneficiaries?

You/ he should ask for a meeting with the solicitor so the solicitor can explain clause by clause the Will.

It will cost more but he needs to understand the will reflects his wishes.

Wills don't need to be drafted in legalese and a good solicitor should be able to explain any complicated phrases.

If he has capacity there is no need for a medical opinion.

If your MIL has capacity (but face to face explanations are easier) she also needs a separate appointment unless these are mirror Wills.

But any doubts about capacity after the usual questions to establish this a medical opinion is needed.

That's my point: there is no medical reason for him to be so... himself. He was orphaned at 6 months, he grew up in care, he did really badly at school and left at 14. He worked a manual job all his life. He never read anything more demanding than the Daily Mail, and he went straight from care, to living with foster family into early adulthood, to being married and living with MIL who ran every single aspect of their lives. He signed where she told him, agreed to what she proposed. Since her decline, he has been floundering with financial, legal and other administrative stuff. DH and SIL have stepped in to help out as much as they can.

There's nothing complex about the wills at all, they just need updated re named executors, addresses etc plus FIL wants to leave his half of the shared property to DH and SIL rather than it going to MIL (and being consumed by care fees) is just beyond him. The lawyer has also proposed some changes re the next "generation of issue" inheriting should DH or SIL pre-decease FIL. There's no medical reason that we know of - though I guess he could have some undiagnosed learning difficulty. He is not the most rational of people, he jumps from subject to subject in conversation, if he doesn't understand things he makes stuff up. But he has been like this forever! It's nothing new - it's just that MIL is no longer able to do all this brain work for him.

The lawyer is going to visit him and go through the will clause by clause and I have no doubt that he will nod and agree and give every impression of having understood. Then DH will talk to him about it the next day, and he'll have forgotten half or it, or muddled it up, or whatever! But I'm guessing that if the lawyer is certain that, at the time of signing, FIL understands it all, that's all that matters - she won't be concerned with whether he understands or remembers it a week later?

Well as long as the solicitor listens to what he wants, then reflects that in the will that's all that's needed isn't it? Has the tenancy been severed?

We’re in Scotland: the survivorship clause is being removed. FIL still needs to clarify what he wants to happen to the non-property residue (There isn’t much but he’s protective of it).

Can a beneficiary contest a will once inheritance (monies) has been paid out to said beneficiary?

@Manly01 - if you want to make an Inheritance Act claim it is likely to be too late. Claims must be made within 6 months of probate being granted.

If you want to contest the validity of the will there is no time limit, nor is there anything preventing you taking action after the estate has been distributed, but delay may affect your chances of success. Remember that, if the estate has been distributed, you would be trying to recover it from those who have received it, assuming the executor has acted correctly.