In this series, we examine the spectrum of mental health issues that impact will-making by those who are vulnerable and consider the extent to which the law in this area has stood the test of time in the face of an ageing population. We explore the tension between safeguarding the vulnerable and enabling them to make their own decisions and consider what the legal industry can do to empower the vulnerable to have a say in the legacy that they leave.

Chapter 1: The Twilight Zone

The current test for capacity to make a will was established over 150 years ago at a time when the average life expectancy at birth was around 43 years. Age-related mental illness was rare. Fast forward to today: a time in which dementia is increasingly prevalent and is viewed and diagnosed in a completely different way. The legal test from 1870 remains good law, but has it kept up with the reality of mental health issues in our society?

Our experts explore “the twilight zone” - the period when somebody still has capacity, but dementia, or another disease, might be affecting their cognitive abilities - and question whether the law provides enough protection for vulnerable clients during this stage of their lives.

Watch time: five minutes

The Twilight Zone is the period when somebody still has capacity according to the legal tests but dementia might be affecting their cognitive abilities."

The whole issue of inheritance in families quite often brings out the worst in us as human beings because there’s too much at stake."

Watch time: three minutes

Chapter 2: The Picture on the Ground

In the early stages of cognitive impairment, people may suffer behavioural and emotional changes. They may become more anxious or isolated; reliant on those they were previously only loosely acquainted with; affectionate towards those they have never been fond of before. Such changes can leave them vulnerable to advantage being taken of them or more extreme predatory behaviour.

Here our experts look at the factors in the UK that are exposing people to manipulative behaviours, including the pressures on the care industry and the increase in fraudsters targeting people with dementia.

Chapter 3: A Legal Perspective

In this episode our leading legal experts explain the legal framework around capacity to make a will and the two possible tests: Banks v Goodfellow, and that set out in the Mental Capacity Act 2005. Our experts highlight the differences and tensions between the two tests, explore what other legal protections are available and consider whether technology presents an opportunity or a threat.

At the heart of the discussion is a consideration of where the balance lies between giving the vulnerable autonomy in decision-making, whilst seeking to safeguard them from advantage being taken of them, and how the law grapples with this tricky area.

Watch time: five minutes

Judging capacity, especially retrospectively, is an incredibly difficult task. What you’re essentially doing is trying to go into the mind of the person and figure out what they were thinking at the time."

People who are in the early stages of dementia, even if they have the capacity, may nevertheless be extremely vulnerable to influence from others."

Chapter 4: A Medical Perspective

What is the “golden rule” and how does it impact the preparation of a will for an elderly or vulnerable client?

It is absolutely key that legal practitioners work with the medical profession to ensure that cognitive ability is properly examined. Our medical expert explores the different medical tests available and their comparative strengths and weaknesses and considers what is required from legal advisers in order to conduct a proper medical assessment.

Watch time: four minutes

Chapter 5: What's Next?

The Law Commission has made some recommendations for how to improve the law in this area. One which stands out to our experts is the suggestion that the Banks v Goodfellow test for capacity to make a will should be replaced by the test in the Mental Capacity Act 2005. Here, they discuss further.

Our experts also highlight the red flags to look out for when it comes to advising and supporting vulnerable clients, not just the elderly. And they look towards the adoption of a Code of Practice for this area as well as increased recognition and flexibility within the law for the vulnerabilities that occur during the twilight zone.