Fact or Fiction? The Reality Of Making A Will
Whether it be Harper Lee’s classic To Kill a Mocking Bird, John Mortimer’s charismatic Rumpole of the Bailey or John Grisham’s The Firm, library shelves are full of novels about lawyers and legal cases.
The Cactus by Sarah Haywood is a 2018 debut novel and tells the tale of the fallout between the heroine Susan and her brother Edward following their mother’s death. The author was born in Birmingham, so there are plenty of local references, and practised as a lawyer before turning to creative writing.
This is no doubt the reason why the dispute about whether their mother knew what she was doing in making her Will is told with refreshing accuracy.
What is key to someone making a Will is the “Banks and Goodfellow” test, which dates back to 1870. The testator, the person making the Will, must
- Understand what a Will is and what it will do
- Know in general terms what assets will be disposed of under the Will; and
- Be aware of anyone who would have a potential claim if they were not included in the Will.
Also, the testator must not be suffering from any delusion of the mind.
A lawyer specialising in Will writing will be familiar with the relevant capacity test and will take steps when taking their client’s instructions to ensure that they have the necessary capacity, particularly if there are concerns about advanced age or illness.