The case law emphasizes that lawyers must make a serious attempt to determine testamentary capacity. Given that different obligations flow from whether a potential client is in extremes or possesses testamentary capacity the lawyer’s determination of whether the prospective client has testamentary capacity is key.  This seminar reviews the case law and provides practical advice for both planners and litigators on how a will drafter should deal with a prospective client who is enfeebled by age or whose faculties are seriously impaired by disease.  The drafting solicitor will need to carefully consider the type of testamentary document being drafted and the test for testamentary capacity in determining whether to accept a retainer in such circumstances, whether a capacity assessment of the client is advisable, whether instructions should be video-taped, and ensure that proper notes and other relevant evidence to document the client’s instructions and testamentary capacity are preserved should the Will be subject of a challenge.

Topics include:

• Drafting Will or Capacity assessment – which comes first?
• Strategies when dealing with hearing and visually impaired
• When in doubt do you draft the will with copious notes or refuse to draft the will?