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Portrait of William "Uncle Bill" Lundy, a veteran of the US Civil War, taken in Florida in 1955

Portrait of William “Uncle Bill” Lundy, a veteran of the US Civil War, taken in Florida in 1955

There have been a few articles this week about a study by Dr Claire Royston and Robert Hunter assessing lawyers’ ability to gauge testamentary capacity. The results of the study were alarming, to put it mildly. Participating psychiatrists and solicitors were shown two [scripted and dramatised] client interviews with a businessman in late middle age looking to make a will: one demonstrating a good interview technique and the other, ahem, not. The client had suffered a stroke, which he apparently disclosed in both interviews, but he was still the possessor of what is described in the reports rather charmingly as a “social veneer”.  However, there were sufficient clues for an alert lawyer to pick up that he might not have testamentary capacity, and in fact he did not.

For me, the really striking thing about the study is that when shown the “bad” interview technique, only 2% of lawyers spotted that the client potentially had a mental disorder and only 33% identified that there was a capacity problem. Robert Hunter commented that it is easy for solicitors “to confuse social graces with mental ability”, a view which I thoroughly endorse. When shown the “good” interview, 90% of the solicitors identified that there was a testamentary capacity problem.

This is an eloquent demonstration of how vital it is, when taking instructions for wills (and I would suggest powers of attorney too) to get the interview technique right. It is all too easy to be lulled into a false sense of security by a client who is telling you that s/he had a stroke six months ago but has made a marvellous recovery, particularly if s/he is appropriately chatty and forthcoming. Everyday politeness does not give you any real idea of whether s/he is in a fit mental state to make dispositions and can mislead you into thinking that the client is on the ball.

More than anything else, this study reinforces the point that taking will instructions involves connecting with the client on a friendly but objective level, and being watchful about what you see and hear. Robert Hunter commented that the “golden rule” that, when drawing up a will for an elderly person or someone who is seriously ill, a solicitor should try where possible to have the will witnessed by a medical practitioner, is often ignored without good reason. Although GPs are sadly not as connected with their patients now as they were in days gone by, a family doctor will often know right away whether a prospective testator is not on their usual mental form.

It is an unfortunate by-blow of recessionary times that disappointed legatees are much more likely to litigate over a will. In the past couple of weeks alone, we have had Paynter v HinchKloosman v Aylen and Schrader v Schrader, some at least of which I hope to note more fully in the next week or so. There is a higher probability these days that the capacity of a testator will be at least queried and probably scrutinised.

The report apparently made five recommendations, including enhanced training in interview techniques for solicitors; creation of an association of specially trained solicitors to take instructions in problematic cases; and an increased awareness of mental capacity issues in this area. I enthusiastically support all of those, though I’m not so sure about the recommendation that there should be professional sanctions for a failure to observe the golden rule “without good reason”. That would in practice make medical witnessing more or less de rigueur in the execution of any elderly person’s will, and it seems to me that the more important factor is for the will draftsperson to be alert and to listen and observe carefully and sensitively rather than simply “doctor up”.

The last recommendation is that there should be videotaping of testamentary interviews, about which I have my doubts. There is always the forthright and flamboyant (or even defiant) testator who will enjoy the experience of giving instructions on camera, but most of us are reluctant enough to be bit-players in wedding videos, let alone starring in our own Truman Show in which we give what are often the results of intensely private and deep thought. This is probably particularly the case where the testator knows that somebody in the family is going to be disappointed by the effect of the Will. I suspect that few people really want to be video’ed upsetting a close relative’s expectations, however well-deserved they believe the comeuppance to be. It is going to be a matter for individual testators, obviously, but it seems to me to hold the danger of putting the desire for certainty above consideration for the elderly or dying person.

You may well now be saying, “Gosh, this seems like an interesting report: where can I read it?” My answer, after several attempts, is that I don’t know. It is possibly my IT ineptitude [should that be ineptITude?], but I can only find secondhand accounts of it and not the source material. If you have better luck, let me know.