There are a number of criteria which must apply in order for a will to be valid and one of the most important is that the person making the will fully understands its implications.

A recent case concerned the will of a man who had a long history of cannabis abuse and had been ‘sectioned’ on several occasions after psychotic episodes. In 1985, he was severely injured in a motorcycle accident and had received a settlement in excess of £1 million to pay for his long-term care needs.

The court appointed a deputy to manage the man’s financial affairs for him.

In 1994, his local council had assigned to him a carer, who was paid to provide his care needs. By the time of the man’s death, the fees charged had risen to more than £50,000 per year.

The man had made a will in February 2012 bequeathing his estate to his two brothers and various charities. However, in December 2012 he made a new will which left almost everything to his carer. The man had undergone an assessment of his mental capacity when the February will was drafted and this concluded that he was capable of creating a valid will. His deputy and his brothers were unaware of the December will, which had been prepared without professional advice or assistance.

At the time of the man’s death in 2013, his estate was still worth nearly £1 million. It came as an unpleasant surprise to his brothers when they discovered that the carer had presented for probate the home-made will as executor and principal beneficiary.

The December 2012 will was contested by the brothers on a number of grounds. The first was that the will was improperly created, and thus invalid. The second was that their brother did not have sufficient ‘knowledge and approval’ of its contents for it to be a valid expression of his wishes when it was made. The third was that the will was fraudulently created and the fourth that the carer had exercised ‘undue influence’ over him to (in effect) mentally coerce him into drafting the will in the terms he did.

The High Court was unable to accept many of the arguments for the will’s invalidity but did find that the evidence relating to the witnessing of it and when it was created left some question over whether or not it had been validly witnessed. To be valid, a will must be signed in the presence of two witnesses.

The decision turned on the Court’s acceptance that the carer had not proven that the man had ‘knowledge and approval’ of the contents of the will and in particular that he understood that his previous bequests to his brothers and the charities would be revoked.

Given the vulnerability of the man, the Court considered that the terms of the will should have been explicitly drawn to his attention and this was not done: he had been left to read the will himself.

Accordingly, the Court ruled that the February 2012 will should be admitted to probate.


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