A recent case shows the importance of involving a solicitor in the preparation of a will, especially where it is considered that an attempt to invalidate it on the grounds of lack of mental capacity may be made.

It involved an elderly man who changed his will when he was 81 years old. His earlier will, made when he was 76, gave his business interests to his son, who also stood to inherit a quarter of his estate, the balance of his estate being left to other relatives.

However, fearful that his son would fritter away his share of the inheritance, the man changed his will so that his son stood to inherit his business only.

When he died, his son challenged the later will.

The critical evidence in the case was that given by the man’s solicitor, who had no doubt that he had full mental capacity (‘was of sound mind’) at the time the second will was made and so was capable of making a will that was both understood by him and reflected his wishes. The court ruled that the new will should stand.

Solicitors are trained to ensure that they satisfy themselves to the maximum extent possible that anyone who instructs them to draft a will understands the effect of the will and is acting under their own volition, not under the undue influence of anyone else.


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