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Testamentary Capacity and Solicitor Negligence

The conclusion of a recent Study undertaken by Robert Hunter, heads of trusts litigation at Herbert Smith and Dr Claire Royston, a consultant psychiatrist and medical director of Four Seasons Health Care, should serve as a stark warning for practitioners in this area. Its conclusion has been that it has found solicitors lacking when making this judgment as to the potential testator’s capacity.

The Study took place over three years, looked at the responses of some 91 solicitors and 92 consultant psychiatrists to two films showing an elderly man visiting his solicitor to give instructions for the drawing up of a new will. The subject of the film was portrayed as a formerly successful business man, who disclosed he had suffered a stroke. He was shown to have “excessive function deficits covered by a social veneer”. The films converged as to good and bad interview techniques, and afterward the participants were asked questions concerning essentially whether than man in the film had capacity.

 The presence of such a disorder could potentially have meant that the man lacked testamentary capacity. It was thus considered that it was crucial for the participants to correctly identify this fact and give it consideration.

The conclusions of the Study are potentially concerning for the legal profession:

 (a) from the film showing the bad interviewing techniques:

 (i) only 2% of the solicitors recognised that the client had a mental disorder, (compared to 73% of the psychiatrists); and

 (ii) only 33% of the solicitors concluded that the client potentially lacked testamentary capacity; and

 (b) however, from the film showing the good interviewing techniques:

 (i) 60% of the solicitors, recognised that the man had a mental disorder (as compared to 84% of the psychiatrists); and

 (ii) 90% of the solicitors came to the correct conclusion as to the potential lack of capacity.

 Dr Royston has been widely quoted in the legal press as saying “These results clearly demonstrate the difficulties faced by solicitors in forming a judgment about the mental capacity of certain clients that may arise from poor interview techniques, for example using leading or closed questions…This is a sensitive subject but it is important that improvements are made in order to protect the rights of vulnerable clients.”

Mr Hunter is reported as suggesting that “The study confirms what many lawyers specialising in probate litigation have long suspected. It is too easy for solicitors to confuse social graces with mental ability… There is an unacceptable level of risk that some solicitors are letting the public down because they do not realise that inappropriate interviewing techniques can conceal their client’s lack of mental capacity. In my experience when solicitors do become aware of a capacity issue, basic safeguards requiring the seeking of medical opinion are frequently disregarded without good reason.”

The authors of the Study propose reforms, including essentially greater regulation of the solicitors profession, increased training obligations and the enshrining of the adherence to the “Golden Rule” with professional sanctions to be imposed for not doing so.

 But solicitors have long had a professional obligation to consider carefully this issue.Solicitors have long had guidance on the correct means of judging the testamentary of their clients. Under the Solicitors Code of Conduct 2007 the starting point is in the Guidance to Rule 2, paragraph 6(1)(a)(3)(iii):

"where you may be dealing with a client who does not have mental capacity as defined in the Mental Capacity Act 2005 … special circumstances apply. You need to bear in mind that the question of capacity relates to the particular decision that needs to be made, and it is, for instance, entirely possible for someone to lack capacity to make certain decisions but have the capacity to instruct a solicitor on other matters. To ensure that you comply with the law you need to have regard to the provisions of that Act and its accompanying Code.”

In this new world of an ‘outcomes focused approach’ the SRA Handbook ed 23.12.11 IB(1.6) obliges a solicitor:

“in taking instructions and during the course of the retainer, having proper regard to your client's mental capacity or other vulnerability, such as incapacity or duress”

Potentially this limited Study shows there may be an issue in the profession as to assessing capacity. The most obvious conclusion of the Study is that asking the correct questions and correctly interpreting the answers according to the correct tests in law is of paramount importance. These are not necessarily matters which can or should be resolved with regulation (although this may generate useful publicity), but most obviously resolvable by better training. If indeed this is down to training or a lack of understanding of the law, such an issue can and should be easily remedied by a contentious practitioner and/or his or her firm.

Any practitioner who is not sufficiently competent in this area, but continues to assess the capacity of those wishing to make a will, shall increasingly do so at his or her peril. The end of the recession is sadly not in sight. People will continue to increasingly exhibit avariciousness in hard times, particularly if family property is involved (such as grandma's proverbial council house in Chelsea, bought in the 1980s for £40,000 and today worth £2M) . The practitioner who does not fully discharge his or her contractual and tortious duties owed to testators, (their estates) and their beneficiaries will face potentially far more serious implications than the “professional sanctions” suggested by the authors of the Study, in the form of what could well amount to a very significant professional negligence claim.

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