Steve Lodge: Wealth Questions

My husband has Alzheimer’s, but often seems quite “normal” and the condition is not advanced. We are updating our wills to leave more of our assets to our children rather than each other. Would my husband be considered of sufficiently “sound mind” to change his will? Are there any rules for those who have mental difficulties writing their wills?

Helena Luckhurst, a solicitor at Speechly Bircham, says that just because your husband has Alzheimer’s disease does not mean he cannot make a will. However, the will should be updated as soon as possible, in case your husband’s mental capacity worsens. He will need to satisfy the solicitor preparing the will that he has capacity.

The test of capacity for anyone making a will is whether they understand that they are making a will; the extent of the assets that they are giving away; and whether they appreciate what moral obligations they might be under when considering who to give assets to.

Your solicitor will decide if your husband meets this test. If there are doubts, a doctor should assess your husband’s capacity. Do agree to this if your solicitor suggests it: this safeguard could make it harder for someone later on to dispute your husband’s will on the grounds of mental incapacity.

If your husband is found to lack capacity, you can apply to the Court of Protection for a statutory will for your husband, whose interests will be overseen by the Official Solicitor. However, this process will involve time, cost and effort in gathering information and will take possibly six months or more. So it’s best to find out as soon as you can if your husband has capacity to make a will.

As this may be the last will that your husband is capable of making himself, it should be made as flexible as possible by including a suitable trust. Flexible trusts in wills (by which trustees can alter terms after your husband’s death) might help you cope with any changes in the law or family circumstances. For example, you say you want to leave more wealth to your children, but what if your circumstances change by the time one of you dies? If the will contains a flexible trust (and you choose your trustees carefully), the trustees can survey the situation after a death and decide what’s best at that point.

Ease of changing title on property

Wealth Questions (March 28/29) said that couples could change the ownership status of a property from “joint tenants” to “tenants in common” simply by putting this in writing to each other. Does this change also need to be registered/confirmed with the Land Registry? How do we do that? Do we need to wait for this new title confirmation before we (re)write our wills?

Tim Gregory, partner in the private wealth group at Saffery Champness, the chartered accountants, says that letters or other documentation between the two of you should suffice for updating your wills, assuming that the property is already registered at the Land Registry. The letters would need to make clear that you are breaking the joint tenancy and now hold the property as tenants in common, but you will want to be sure that they have legal effect, so you should have them prepared by a lawyer or licensed conveyancer. An alternative form of documentation would be a deed, but this would have to be witnessed, whereas letters would not.

The change in beneficial ownership from joint tenants to tenants in common is created by the underlying documents (the letters or deed), not by the registration itself. However, registering the change in the joint ownership at the Land Registry would make the position as secure as possible.

Registering the change is straightforward, involving the submission of a completed form to apply a “Form A Restriction” on the Land Registry.

As it is not essential for the change to tenants in common to be registered, there is no need to wait until you have submitted the Land Registry form and title confirmation has come through before changing your wills.

If the property is not currently registered at the Land Registry then, since April 6 2009, changing the beneficial ownership will have to be registered.

Changing the beneficial ownership in the opposite direction, from tenants in common to joint tenants, requires a more complicated process, and legal advice should be obtained.