A recent Court of Appeal case shows how important it is to carry out procedures properly in order for a person who clearly has impaired mental capacity to create a will that can withstand legal challenge.

It involved a will created in 2005 by an 84-year-old woman. It divided her estate between her two sons and superseded an earlier will, executed in 2003, which gave the majority of her estate to one of them.

The woman died in 2010 and the son who had stood to inherit under the earlier will challenged the legitimacy of the new will on the basis that his mother lacked ‘testamentary capacity’ when she executed it and did not ‘know and approve’ its contents.

In an earlier transaction, in 1982, the son who was not included in the earlier will had paid his parents the sum of £10,000. In return, he had been given a half share in his parents’ house under a trust arrangement. When his father died, this left him owning a half share in the property.

Under the new will, he would inherit half of the remaining half share, so would then own a three-quarter share in the property. In essence, therefore, the dispute was over a quarter share in the property, worth only in the region of £26,000.

There were further complexities, including the death of one of the brothers during the course of the dispute, with his case then being taken up by his children, who are his executors.

The nub of the issue was whether the deceased woman was in a fit mental state to draft a will in 2005. At that time she could no longer write a sentence, say what the year, season, date, day or month was and showed deficient short-term memory. Her lack of full capacity was further evidenced by the scores on a number of tests of cognitive function which she had been given.

Crucial in the decision was evidence given by the deputy manager of the day care centre the woman attended for several years before her death and that given by the solicitors who prepared the 2005 will, to whom she had apparently written letters of instruction.

In the High Court, the judge concluded that ‘whatever her problems…she knew that she had two sons and she knew what she had by way of assets’ and that ‘she knew that the document she was signing…was the will that she requested in the latter part of 2004. I am satisfied that the document was read to her and I am satisfied that she was seen alone.’

On the basis of all the evidence, the judge concluded that she ‘had the requisite testamentary capacity and also knew and approved the contents of this simple yet important document to her. She achieved what she had set out to do, which was an equal split of what was owned to be shared between her two sons.’

Although the woman was regarded as ‘suggestible’, the solicitor saw her alone in his office with only another member of the firm present, not her son. The solicitor was of the view that she understood and approved the contents of the will which he read out to her.

This evidence was sufficient to allow the Court of Appeal to deliver a unanimous verdict that the 2005 will was valid.


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