Update vs change a will.

elsien

Relative has a existing will he wants to change. Relative has dementia diagnosis so probably at the moment has fluctuating capacity.
Relative's sibling phoned the solicitor on his behalf to ask where he stood with regards to the dementia and making changes. Solicitor (without having met the person for some time) said he might be able to update the will but not change it/make a new one.
So generally speaking, what would count as an update as opposed to a change? How big a change would merit a new will?

Yorkshireman99

elsien wrote: »

Relative has a existing will he wants to change. Relative has dementia diagnosis so probably at the moment has fluctuating capacity.
Relative's sibling phoned the solicitor on his behalf to ask where he stood with regards to the dementia and making changes. Solicitor (without having met the person for some time) said he might be able to update the will but not change it/make a new one.
So generally speaking, what would count as an update as opposed to a change? How big a change would merit a new will?

The solicitor is wrong. If the person has mental capacity they can make a new will or make changes. Any change would require mental capacity. The risk of making changes that the testator does not have capacity for is that someone may challenge the will after the death.

elsien

That's what I thought, but wondered if I was missing something.

TBagpuss

What is the change that they wish to make?

While it is correct that a person either has capacity or hasn't, making minor changes (such as, for instance, adding a new grandchild, or replacing an executor due to age) are far less likely to give rise to any later concerns about capacity

I would expect a solicitor to recommend that there is n up to date medical assessment if there is a new will or codicil, so that the issue of capacity is assessed at the time the will is made

elsien

They wish to remove some of their children as beneficiaries, I believe, so not a small change.
Would the solicitor not assess capacity?

SevenOfNine

MiL wanted to change hers & FiL mirror Wills, currently leaving everything to each other then further down the line when they've both gone, 50% split between their 2 sons and remaining 50% split between grandchildren.

Wanted to change it to cut out grandchildren (not out of spite, they all doing pretty nicely on their own). Solicitor advised absolute NO as FiL has dementia diagnosis.

Of course, if she outlives him she can always change hers then.

Yorkshireman99

elsien wrote: »

They wish to remove some of their children as beneficiaries, I believe, so not a small change.
Would the solicitor not assess capacity?

The solicitor is likely, and quite correctly, to be cautious. If there is a subsequent dispute they will want to be sure. Given what you have said about the proposed changes cutting children out might well result in litigation.

Savvy_Sue

elsien wrote: »

Would the solicitor not assess capacity?

It would be a brave solicitor who would assess capacity in this situation without a professional medical opinion.

As far as fluctuating capacity goes, then it's worth giving some thought to when capacity is at its best. For example, is it in the morning, or the afternoon? Would a home visit be helpful, both from any medical professional assessing capacity and the solicitor?

Another question might be about whether the reasons for wanting to cut children out are 'sound' or not. I know not necessarily your business, but at one stage FIL felt very aggrieved about something DH had done - we had no idea what it was, but FIL was deeply offended and would barely speak to him. I don't know whether FIL eventually forgot what it was, or mellowed, or whether MIL talked him round, but if he'd been one for changing his will then I'm sure DH would have been cut out ...