Financial & Legal News

A Testing Case Concerning A Will

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A person making a Will (the Testator) must be capable of making a valid Will at the time it is made. This means that they must be aged 18 years or over and must be of sound mind, memory and understanding.

The Testator must be capable of understanding the nature of his/her acts and its effect and the extent of the property which they are disposing of under the Will. They must also be aware of those who they would morally be expected to provide for and must not be suffering from a medial condition which would affect their decision.

However, in some cases a Will can be challenged if it is proved that the Testator, at the time of making the will, did not know the consequences of their conduct.

Testamentary capacity’ is the legal term used to describe a person’s legal and mental capacity to make or alter a valid Will and litigation in this area usually revolves around senility, dementia and a general lack of mental capacity.

Laura Pracy, a Litigation expert in Contentious Probate at Pearson Solicitors said:

“The background in the recent case of Feltham v Bouskell [2013] EWHC 1952 highlights the important considerations to be made when a person is making a Will and how crucial it is to get good legal advice at that time’’.   

“This is a very emotive area of the law and one in which sentiment should not be allowed to cloud judgement,” she added.

In this case, the step-granddaughter of a 90 year old lady (Mrs C), was not a beneficiary under the earlier Wills made by her Grandmother. The Estate was to be distributed three ways between Mrs C’s friend, cousin and long-term partner.

Following the death of her long term partner, Mrs C had been moved to a care home at the step-granddaughters suggestion.  Mrs C suffered from dementia. The step-granddaughter had telephoned Mrs C’s solicitor and informed him that Mrs C wanted to make a new Will. The solicitor rightly asked for a medical opinion before a new will could be made as he had concerns for his client.  Her condition did vary however and the medical report that followed stated she had capacity to make decisions and changes to her will.  In this case, it took sometime for the medical report to be prepared and Mrs C was said to be impatient. She therefore asked her step-granddaughter to produce a new Will in the meantime using a wills website. The bulk of the Estate in the new ‘Will’ went to the step-daughter.

The Testator made various amendments to the Will produced from the website and the Will was signed by Mrs C, witnessed by two witnesses. The witnesses recalled Mrs C to be a bright and alert lady apparently of sound mind. Sadly, Mrs C died just two weeks later, and the new Will was challenged by the two former beneficiaries under the earlier Wills on the basis that the Testator was not of sound mind.

This case settled after mediation, on the step-granddaughter agreeing to pay the former beneficiaries £325,000 each. 

Following on from the settlement, Mrs C’s step-granddaughter pursued a claim against Mrs C’s solicitor for damages for negligence.  Mrs C’s solicitor was held liable in negligence.

The Judge said that the solicitor should have visited his client if he had concerns and just delaying the matter because he believed his client did not really want to change her will was not acceptable.

“This is a very sad case, but one which is not so unusual where the affairs of the elderly are concerned. I would urge anyone with issues and doubts to consider consulting with their solicitor sooner rather than later for sound advice.  Firms with specialist solicitors used to dealing with the affairs of older and vulnerable clients are best placed to give appropriate advice,” said Laura.

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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.

Written by Laura Pracy


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