A recent case in the London County Court illustrates the vital importance of a testator both having the mental capacity to make a will and knowing and approving its contents.
Daphne Burgess was a widow with three children. In 2006 her health began to deteriorate and she suffered a series of mini-strokes. She also suffered from dementia, diabetes and arthritis.
In 2007 Mrs Burgess was taken by her daughter, Julia Hawes, to make a new will. They visited a solicitor with whom Mrs Burgess had had no previous contact and a will was drawn up cutting out her son. Mrs Burgess’s previous will had divided her estate equally between her three children. Mrs Hawes accompanied Mrs Burgess on her visit to the solicitor to sign the will, and may also have been present at the meeting when instructions were given to the solicitor drawing up the will, although he could not recall whether this was the case.
Despite the presumption implied by law that Mrs Burgess knew and approved the contents of the will, the court upheld her son’s challenge to its validity and overturned it. Mrs Burgess did not have the necessary mental capacity to make the new will and did not know and approve its contents.
The court also ordered Mrs Hawes, a magistrate, to repay a number of payments made from her mother’s bank account to her and her family, including payment for Formula One tickets for her husband. It was found that Mrs Burgess did not have the necessary mental capacity to make these payments.
Those caring for elderly people, and looking after their finances, should always be aware that their actions may be subject to scrutiny from other family members. Family members taking their elderly relatives to solicitors’ appointments to make wills should expect to be excluded from the interview as it is an important part of the solicitor’s job to ensure that the client does indeed know and approve the contents of the will, and that they are giving instructions of their own volition with no undue outside influence.