It was recently reported in the Law Society Gazette that a Hampshire firm is to start offering will writing services by Skype. In a world where litigation over wills is increasing, this led me to wonder about whether this would provide the will writers with sufficient knowledge of the client to be convinced that they had capacity to make a will. Unfortunately, the quality of broadband services in some places will mean that it may be very difficult and tme consuming to even take instructions!
A will can be attacked if, at the time of making it, the testator does not have mental capacity. The test for capacity is set out in the case of Banks v Goodfellow (1870), namely:
- the testator must understand the nature of his act and its effects;
- he must appreciate the extent of his estate;
- he should be able to comprehend and appreciate the claims which he should give effect to;
- in relation to (c), nothing shall poison his affections, pervert his sense of right or bring about a disposition that he would not have made had he been of sound mind.
In order to challenge a will on the grounds of capacity, it is necessary to have evidence of the testator's state of mind at the time when the will was made. It is often down to the will writer making the will to consider and assess capacity, if necessary with the aid of a GP who can confirm that the testator remains of sound mind. It is highly advisable to discuss changes to previous wills with the testator and take instructions in a confidential, neutral setting without any of the principal beneficiaries present.
If you are discussing matters over Skype, then it may be very difficult to properly assess the testator's capacity. People can be very skilful at covering up difficulties with memory or understanding, and that is likely to be even more the case when they are in the familiar surroundings of their own home. It is also impossible to know who may be present with the testator. The fact that you cannot see anyone else does not mean that they are not present and exerting an influence.
For those living in rural areas, or who find it difficult to get out and about, it may be preferable not to have to travel to a solicitor's office (or to incur the costs of a home visit), and this could provide a good opportunity for people to be able to make (or amend) wills, rather than putting it off until they can get to see someone. For the vast majority of clients where there is no question of capacity, it will simply be another method of instructing a will writer. Another advantage of Skype is that it does at least allow the solicitor to see the client - a lot can be gleaned from facial expressions and body language.
As with all things, there are pros and cons to this idea. It will be interesting to see how many other law firms take up this idea, particularly in rural areas or in order to keep costs down by positioning staff in offices in cheaper areas. For now, it remains my view that if in doubt, it is better to see the client in person because capacity challenges can be hard fought, lengthy battles and very expensive.