A concerning consequence, however, is that it is more difficult to challenge the wills of vulnerable older people who have been pressured to create a will that does not reflect their true intentions.
Creating a will before you become vulnerable to pressure is the best way to protect against it.
As well as want of capacity, a will can be challenged on the basis of a “want of knowledge and approval” or “undue influence”. The latter covers cases in which an individual has mental capacity and fully appreciates that he or she is signing a will but is doing so only under pressure from another person.
Acting as a free agent
The essential question in such a case is whether the testator is acting “as a free agent”.
The physical and mental strength of a person will be taken into account in any assessment of the testator’s intentions.
Where a person is physically or mentally frail, the court will consider that this person’s ability to stand up to pressure may have been reduced.
This underscores the importance of creating a will before one's mental and physical faculties start to decline.
Finally, as highlighted in recent case law, it is markedly more difficult to challenge the validity of a will when it has been professionally prepared on specific instructions and then explained by an independent and experienced solicitor.
If there are any concerns about mental capacity, obtaining an expert report at the time the will is created from a doctor familiar with the principles in Banks v Goodfellow will reduce the potential for challenges based on lack of testamentary capacity.
A professionally created and executed will, supported by medical evidence as to testamentary capacity where necessary, can provide a degree of certainty and clarity for your clients' loved ones.
Sadly, none of these steps will eliminate entirely the risk of financial abuse of the elderly.
Although better education and publicity about the risks and common forms of financial abuse, proper vetting of those who are involved in the care of vulnerable persons and robust police action where a criminal offence has been committed will all assist, there is a need for local authorities to take a more muscular approach to their adult safeguarding powers under the legal framework in the Care Act 2014.
In the absence of that, financial abuse of the elderly is likely to grow as a result of the increasing concentration of property in older people and legislation that allows those over 55 to access their pension pots.
James Berry and Elizabeth Fox are barristers at Serjeants’ Inn Chambers specialising in Court of Protection work
