Max introduces the podcast and welcomes Tony Skinner back to the channel.
Tony mentions a TV show, "Mother and Son," that humorously explores capacity issues.
Max discusses the character Maggie from the show, who might have dementia, highlighting the uncertainty in real-life cases.
The conversation shifts to the legal and medical aspects of determining capacity for making a will.
Legal and Medical Determination of Capacity
Max explains that the court, not the lawyer or doctor, determines capacity for making a will.
He outlines the legal test for testamentary capacity, including understanding the nature of a will, assets, and claims on one's bounty.
Max emphasizes the importance of lawyers making wills even if they suspect the person lacks capacity, to avoid depriving them of their right to make a will.
The presumption of law is that a person has capacity until proven otherwise, and lawyers must avoid biases.
Practical Considerations in Will-Making
Tony raises the issue of relatives guiding the person making the will, complicating the capacity question.
Max advises that instructions for making a will should be taken with the person alone, unless they are elderly and need a support person.
He stresses the importance of hearing the person's unaffected wishes directly.
Tony and Max discuss the impact of language barriers and the need for interpreters, especially when the proposed interpreter is a beneficiary.
Handling Capacity Concerns and Legal Advice
Max insists on removing relatives from the room during the detailed instructions for making a will to avoid contamination of the person's wishes.
He explains the potential risks of not following proper procedures, including the will being contested and the lawyer being sued.
Max suggests that if there are concerns about capacity, the person should be referred to a doctor for a report.
He advises framing the doctor's visit as insurance to protect the will from future contests.
Final Thoughts and Wrap-Up
Max reiterates that capacity is ultimately determined by the court, not by family members or lawyers.
He emphasizes the importance of getting a doctor's report and taking detailed notes as good insurance for potential contests.
Max clarifies that having dementia does not necessarily mean a person cannot make a will.
He concludes by encouraging listeners to subscribe to the podcast and consult with a lawyer for specific legal advice.