Technical Corner

For this week’s newsletter the Technical Team have picked out three interesting queries from the last month all centred around the theme of loss. Loss of capacity, loss of a will, and loss of a beneficiary. Some details may have been changed from the originals as all queries have been anonymised. 

Loss of Capacity: The Golden Rule

Q: I have spoken to the client to advise of the need for a medical opinion. He is adamant that he will not have a second opinion. I advised him that without it I could not prepare his will or LPAs. He was still adamant. Should I simply refuse to prepare the necessary documents? Or should I prepare them subject to advice that I consider a second opinion to be critical and that my own opinion as to capacity may not be sufficient if there is any challenge?

A: If you reasonably believe him to have capacity then you can continue to draft the documents but you should make sure you record in detail what has happened so far, why you believe him to have capacity. Include the email that [redacted] (editors note, this was a medical professional) sent you. You should also record the fact that you suggested a capacity assessment in line with the ‘golden rule’ but that the client steadfastly refused.

I’ll copy the Law Society’s Wills and Inheritance Protocol advice on best practice here. I know most of us aren’t solicitors but it’s still certainly good advice to follow:

“If it is not possible for the will drafter to obtain a medical opinion on the testamentary capacity of the client in accordance with the ‘golden rule’:

(a) explain to the client that, in the event of a subsequent challenge to the will on the basis of lack of capacity, the lack of a contemporaneous medical opinion may make the challenge more likely to succeed; and

(b) ask the client to confirm that they wish to continue, record the advice given and the client’s decision, and preserve as part of the will file.”

Loss of a Will

Q: Please can you explain what the position is when an original will cannot be found after the testator’s death?

A:  I assume that the Will had been validly signed.

An establishing question we have to ask would be, who is the last person in known possession of the Will?

The reason we ask is there are two likely outcomes:

1) If the client was the last known person to hold the Will before it was lost, it will be presumed that the Will was intentionally destroyed by them; intestacy would apply unless they can provide evidence to rebut the presumption that they intentionally destroyed the will.

2) If the last known location was not with them, then there may be grounds to submit a copy will to probate provided that it can be proven that the will was validly executed.

Missing Beneficiary

Q: Please will you explain the process an Executor is expected to do when they are unable to locate a beneficiary.

A: Executors would need to make every effort to find the missing person. This may extend to making enquiries with the deceased’s friends and other relatives to obtain the beneficiary’s whereabouts, taking out advertisements in local papers in the area that the beneficiary was last known to be residing and placing the usual section 27 advertisement in the London Gazette.

If the person cannot be found by the executors, they would have 3 options:

• The legacy may be paid into court and the rest of the estate distributed accordingly. The court would keep hold of the legacy for a certain number of years in case the person reappears and if he does not then it would be distributed accordingly according to the terms of the Will.
• The executors could apply for a Benjamin Order; this is an order granted by the court giving leave to distribute the estate on a certain assumption, for example the assumption that the missing beneficiary predeceased. This would allow the executors to distribute the estate to the other beneficiaries. Prior to the granting of the Benjamin Order the executors would be expected to have done all they can to trace the beneficiary. Applying for a Benjamin Order would be an expensive procedure.
• Another available option is for the executors to take out missing beneficiary insurance and distribute the estate accordingly to other beneficiaries. Again, all reasonable steps must have been taken to trace the missing beneficiary.