Final Post and Season's Greetings

With the annual leave season starting in earnest over the next couple of weeks and many advisers taking either extended leave or alternatively taking the opportunity to catch up on things not progressed during the calendar year, last week’s post will be the final one until early 2014.

Similarly, my Twitter and LinkedIn postings will also take a hiatus until the New Year as from today.

Thank you to all of those advisers who have read, and particularly those that have taken the time to provide feedback in relation to, the various posts.

Additional thanks also to those who have purchased (via donation) the various versions of ‘Inside Stories’ – the consolidated book of posts.  An updated version of this book, containing all posts over the last four years should be available in the new year.

Very best wishes for Christmas and the New Year period.

Testamentary capacity

Recent posts have considered various aspects of assessing a will maker's testamentary capacity. 

One issue that has come up recently is the ability for the lawyers to make the relevant assessment, where all client meetings are web-based.

Perhaps somewhat counter-intuitively, the ability to assess testamentary capacity via web platform is often superior to the traditional, face-to-face, delivery of legal services. The reasons for this include:

1. generally lawyers conducting a meeting should have the general rules for assessing the testamentary capacity of a will maker top of mind at the time of conducting the web based meeting, and asks probing questions crafted to test the criteria; 
2. at View Legal, the estate planning platform via the web is a strictly wholesale platform, each client can only access the solution if their financial adviser or accountant facilitates the process; 
3. generally, any client that has an ongoing relationship with a financial adviser or accountant has a very good understanding of their financial affairs and the significance of them; 
4. the financial adviser or accountant facilitating the process will be considered by the client as their 'trusted adviser' and will often have a deep, longstanding and regular relationship with the client. Rarely do traditional law firms enjoy such a relationship with a client; 
5. as the adviser and View Legal work collaboratively, sensitive issues such as capacity of the client are far easier to raise, discuss and address; 
6. again, largely due to the collaborative approach between the adviser and View Legal, the lawyer will have received and reviewed a significant amount of detailed information about the client, which in comparison is often far more comprehensive than in the traditional process. This allows View Legal to ask far more probing and relevant questions as part of the web-based meeting; 
7. the web-based meeting is fully recorded (with the client's consent), which provides significant evidentiary advantages if ever needed, as compared to the traditional approach; and 
8. finally, the signing meeting is regularly hosted by the referring trusted adviser, who in most instances, will be best placed to very quickly identify if there has been a significant deterioration in the mental capacity of the client.

Until next week.

Assessing Testamentary Capacity (Part II)

Last week's post looked at the general rules for assessing the testamentary capacity of a will maker. In particular, six of the twelve main items to consider were listed.

As promised, this week's post lists the other six main issues to consider, which are as follows:

1. the person does not seem unduly influenced by others about their decision making; 
2. the person does not display an unreasonably low level of concern with the activities of other people (particularly their immediate family members); 
3. the person does not display an unduly low ability to adapt to change; 
4. the person did not appear to be prone to unduly losing things or themselves getting lost; 
5. there is no reason to believe the person has recently undergone a change in behaviour or experienced a change in personality; and
6. there is no reason to believe that there are any other factors present that might indicate impaired testamentary or decision-making capacity. 

In next week's post, we will consider some specific issues in relation to assessing testamentary capacity in a web-based environment.

Until next week.