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Solicitors failing to judge clients’ testamentary capacity

Solicitors are at risk of failing to recognise impaired mental capacity of clients and ignoring signs of testamentary and decision-making ability, an independent study has shown.

6 December 2012

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The three-year study, conducted by Robert Hunter, a solicitor specialising in cases of disputed testamentary capacity, and Dr Claire Royston, medical director and consultant psychiatrist at Four Seasons Health Care, highlights the difficulties faced by solicitors in spotting that there might be problems with the mental capacity of clients.

In the study, 91 solicitors and 92 consultant psychiatrists were shown two short films portraying an elderly gentleman attending a solicitor to give instructions for his will. The films demonstrated two interview styles, essentially showing a good and a bad interview technique.

They were then asked to complete a short questionnaire with distracter questions and two key questions: did the client have a mental disorder? Did the client potentially lack the capacity to make a will?

The client, a late middle aged formerly successful businessman, was deliberately scripted and portrayed to have executive function deficits covered by a social veneer.

He discloses that he has had a stroke, but his social rapport and boardroom skills appear to have confused those watching the interviews. The extent of the client’s impairments demonstrated in the film were such that there are sufficient ‘clues’ that he does have a mental disorder and that he would fail a test of his capacity to give instructions for a will.

When presented with the evidence from the good interview technique film, 60 per cent of solicitors correctly recognised that the client had a mental disorder, compared to 84 per cent of psychiatrists watching the same film.

The results from solicitors and psychiatrists watching the film where the bad interview techniques were employed were striking. Bad interviewing techniques resulted in only two per cent of solicitors recognising that the client had a mental disorder, versus 73 per cent of psychiatrists.

When asked about the client’s testamentary capacity, 90 per cent of solicitors came to the correct conclusion from the good film compared to 75 per cent of psychiatrists. Again, the effect of the type of interviewing techniques was very evident, when solicitors watched the bad interview only 33 per cent came to the correct conclusion – that the client potentially lacked testamentary capacity.

“These results clearly demonstrate the difficulties faced by solicitors in forming a judgment about the mental capacity of certain clients that may arise from poor interview techniques, for example using leading or closed questions,” said Dr Royston.

“This is a sensitive subject, but it is important that improvements are made in order to protect the rights of vulnerable clients. Making a will is often done by elderly individuals at a time when they are unwell and it is essential that solicitors engaged in this work develop a higher greater awareness of mental capacity issues and the potential impact of interview techniques on a client,” she said.

Robert Hunter, joint head of fraud litigation and head of trust litigation at Herbert Smith Freehills LLP, said: “The study confirms what many lawyers specialising in probate litigation have long suspected. It is too easy for solicitors to confuse social graces with mental ability.

“There is an unacceptable level of risk that some solicitors are letting the public down because they do not realise that inappropriate interviewing techniques can conceal their client’s lack of mental capacity. In my experience, when solicitors do become aware of a capacity issue, basic safeguards requiring the seeking of medical opinion are frequently disregarded without good reason,” concluded Hunter.

Several proposals for reform were suggested as a result of the study:

1. increased awareness among the legal profession of mental capacity issues in the testamentary context;

2. professional sanctions in cases of failure to observe the golden rule without good reason;

3. enhanced training for solicitors interviewing techniques;

4. creation of an association of specialist trained solicitors to take instructions in potentially controversial cases; and

5. videotaping of testamentary interviews.

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Legal services Vulnerable Clients