When a terminally ill man changed his Will by Codicil shortly before he died, in order to provide for the woman he had been living with for the 12 years prior to his death, his family sought to dislodge it. The codicil was prepared by the man’s solicitor. The man died as a result of motor neurone disease five months after making the codicil.

The revised Will left the man’s partner a car, the right to reside for life in the home they had shared and an annuity of £12,000 per year. His earlier Will had made no provision for her, leaving his entire Estate to his son, who was also his executor, although he had left notes that provision was to be made for her.

The son claimed that when the codicil was made, his father lacked mental capacity (i.e. he was not of ‘sound mind’) and that he did not understand the implications of the changes he had made; his ability to do so being impaired on account of his declining mental and physical ability as well as alcoholism.

Although considerable medical evidence was advanced in support of the son’s claim, and rebutted by medical experts acting for the deceased’s partner, the High Court followed the accepted practice of being reluctant to allow a challenge on the basis of ‘want of mental capacity’ to a Will that has been drafted by an experienced and independent solicitor. Therefore the terms of the Will were upheld by the Court.

Making or changing a Will is normally straightforward and where this is done with the benefit of a solicitor, it is much less likely that a challenge by a disgruntled family member or others whose expectations have been unfulfilled will succeed. If you are considering making a Will, our experienced Probate Department will be more than happy to assist.


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