Time for change – discussing mental capacity and will-making

June 7, 2023

Henrietta Mason, Senior Counsel, Farrer & CoAn estimated 900,000 people in the UK live with dementia, a figure projected to rise to 1.6 million by 2040. At the same time, will disputes are on the rise and, very often, the issue of mental capacity will be at the heart of the arguments.

ILM corporate partner Farrer & Co. has recently shone a spotlight on the topic with the launch of a new campaign entitled A Lasting Legacy.

It comes at a time when the Law Commission has advised that this autumn will see it re-start its work around reforming the law of wills, a project that began with a public consultation in 2017. A supplementary consultation paper is due to be published in September.

The A Lasting Legacy campaign has been produced by Farrer & Co’s Contentious Trusts and Estates and Private Clients teams.

It centres on a series of five videos with contributions from three renowned experts: Professor Robin Jacoby, Emeritus Professor of Old Age Psychiatry at the University of Oxford, who has a specialist interest in legal mental capacity in older persons; Caroline Abrahams CBE, Charity Director, Age UK, well-respected as an advocate and campaigner for older people; and Penelope Reed KC, who brings in-depth experience in trusts and inheritance matters through her role as barrister, judge and mediator.

The focus is the need to raise awareness of the spectrum of mental health issues that can impact the will-making process, especially for those individuals who are more vulnerable.

It also asks the question as to whether the law in this area has stood the test of time; tackles the tensions between safeguarding the vulnerable whilst enabling autonomy in decision making; and considers what the legal industry can do to empower the vulnerable to have a say in the legacy that they leave.

We spoke to Henrietta Mason, Senior Counsel, Contentious Trusts and Estates Team at Farrer & Co. to find out about A Lasting Legacy and what she hopes the campaign will help achieve.

Henrietta, why do you think this campaign is so important?

Whenever I tell people what I do for a living, they almost always mention that they know someone going through a related situation, referring to their experiences with elderly parents or relatives in the will-writing sphere and issues around mental capacity and/or dementia.

The idea behind the campaign and the videos was to try and present the subject in a way that would grab everyone’s attention. I hope it will help with awareness-raising and generate some discussion and movement, so that legal reform can progress more quickly than the stop-start we have experienced in the last 5 years.

In one of the videos, Caroline Abrahams CBE says that the Government just hasn’t prioritised the law in this area for elderly people. I agree. It is really unfair on older people that legislation to protect them has been de-prioritised, when actually, there are some quite simple solutions that could be put in place, and particularly after all the hard work that the Law Commission put into the Wills Consultation in 2017.

Everyone involved in the series is very passionate about the topic and I am very pleased with the way it has come together.

Why does the current law need to change?

The legal test for capacity (Banks v Goodfellow) was established 150 years ago. At the time, average life expectancy at birth was 43 years. Dementia wasn’t a condition that was associated with old age. Our understanding of mental capacity issues has changed dramatically in the intervening period.

One area of particular concern is the concept of ‘the twilight zone’. This is the period during which someone still has capacity to make a will under the Banks v Goodfellow test, but the onset of dementia may be affecting their cognitive ability, potentially leaving them open to abuse.

This is usually a time when people are really, really vulnerable. They are elderly and often more suggestible than they would have been in their younger years. They don’t have the wherewithal to stand up to people who seek to influence their decision making.

The legal threshold for undue influence in will making is so high – you need to show that the testator was pressured or coerced into making the will in that particular form.

Often, the testator will have been isolated by the person seeking to influence them and, of course, by the time people become aware of the situation, the key witness, the testator, has often passed away.

I’m not sure there is a perfect solution to the problem, but, for a while, it was frustrating that changes to the law were put on hold. Happily, since launching our video series, the Law Commission has restarted the Will Reform project and we are expecting a supplementary consultation in September.

What changes do you believe could help?

When I started out in this sector in 2003, disputes were relatively rare, but as property prices have increased, more people are prepared to fight about succession.

As part of the video series, Professor Jacoby talks about the need for will writers, doctors and families to be more aware of the symptoms and signs of cognitive decline and vulnerability, such as changes in behaviour, personality and memory failure.

For example, an individual may have capacity to make a will and know roughly what they want to do, but their organisational capabilities may have declined and for that reason they could struggle to access the legal advice they need. They may become very dependent on someone they weren’t dependent on before, even to the extent of not being able to admit to legal advisers that they would like to speak to the lawyer on their own.

It is a very difficult dynamic, it’s incumbent for solicitors to remember that their role is to take instructions from the client only and to safeguard the client as much as they are able.

I think that solicitors would benefit from having more guidance around how to deal with these concerns and that more could be done generally in the law to make it easier to challenge some of the transactions on the undue influence side.

Does the increase in services such as online will-writing or free will-writing services where you fill in a form or talk to someone over the phone, potentially increase the risk?

Unless a meeting is face-to-face in person, the will writer will never know for certain what is going on in the part of the room that they can’t see. So, yes, the risk of abuse is greater where there is no face-to-face meeting.

But of course, access to will-making is very important as well. And, arguably, the more safeguards that are introduced into the will making process, the greater the hindrance to will-making.

Accessibility of will making is a very important consideration, not only because we want to be an enabling society allowing all people access to freedom and choice, but particularly for charities.

As we know, the more wills that are made, the greater the likelihood of a charity receiving a legacy. If someone dies intestate, then charities don’t get a look in and of course, charitable giving provides an awful lot of support for services in this country, that otherwise wouldn’t be funded.

And this is a key tension which we need to grapple with – where does the balance lie between safeguarding those who are vulnerable and enabling them to continue to make their own decisions?

Tell us more about why legal changes haven’t progressed as quickly as you would have liked.

When I was first sitting on the Wills and Equity Committee of the Law Society around 2010/11, we were starting to talk about reforms to the law around will making. We put a paper to the Ministry of Justice which the Law Commissioners used as part of their research on reforming the laws around will making. The Law Commission issued its consultation paper on will reforms in 2017.

Stakeholders responded to the consultation within the allocated timeframe, but in 2019 the project was paused when the government aske the Law Commission to prioritise a review of the law concerning weddings.

I am pleased to see now from the Law Commission website that the government has re-started the wills project and aims to publish a supplementary consultation paper in September 2023.

This is good news because legal change is crucial to protect those with mental health vulnerabilities and those suffering deserve to have their needs prioritised.

A Lasting Legacy

A Lasting Legacy - Farrer & CoEach of the five videos in the series deals with different chapters (see below) and examines in more detail about the likely changes that could be implemented to help protect vulnerable individuals. The videos may be viewed here.

  1. The Twilight Zone: Is the law doing enough to support individuals with mental health vulnerabilities in making their last will? Is there enough protection in the law for those suffering from the early stages of dementia. Watch [5 mins]
  2. The Picture on the Ground: A look at the factors in the UK that are exposing people to manipulative behaviours, including pressures on the care industry, increasing asset values and fraudsters actively targeting people with dementia. Watch [3 mins]
  3. A Legal Perspective: An explanation of the legal framework for safeguarding the vulnerable. This chapter considers whether technological advances present an opportunity or a threat, and where the balance lies between autonomy in decision-making, and protection from abuse. Watch [5 mins]
  4. A Medical Perspective: How legal practitioners can work with the medical profession to ensure that cognitive ability is properly examined, reducing the risk of abuse for those who are vulnerable. Watch [4 mins]
  5. What’s Next?: How could the law be modernised to provide more protection for the vulnerable? Watch [5 mins]


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