The dangers inherent in adopting a casual approach to one’s will were starkly illustrated in a case that considered the validity of three ‘templated’ wills written by an elderly woman within a period of four years.

The woman had three children and two brothers. One of her sons became her principal carer and lived with her whilst one of her brothers managed her finances. In 2008, she made a will of the kind sold at stationers. This left the bulk of her estate to her brother and appointed him as her executor. She made a similar will in 2011 and yet another in 2012.

In 2011, the social services team of the local council began an investigation as a result of concerns over possible neglect and financial abuse by her brother. These resulted in an application to the Court of Protection by the council, in 2012, to be appointed the woman’s deputy in respect of her financial and property affairs.

Before the matter could be fully resolved, the woman died. Her son, who was unaware that his mother had made any wills and assumed that she had died intestate, applied for and obtained letters of administration over her estate.

These were opposed by the woman’s brother, who sought to have one of the wills accepted as valid by the Court.

The Court ruled that the 2011 and 2012 wills were not validly executed. The 2008 will was challenged on the basis that the woman lacked testamentary capacity when it was created and did not evidence ‘knowledge and approval’ of its contents.

Considerable evidence was given that the woman had been confused. She had, for example, put a dress on the wrong way round and had also asked why a long-dead relative had not called her. However, the judge considered that ‘merely showing that a testator suffered from confusion or some level of dementia is insufficient to render that person incapable of making a will’. The challenge on the ground of testamentary capacity therefore failed.

Crucial to the claim that the 2008 will was executed without knowledge and approval of its contents was independent evidence given by a third party that the woman had repeatedly told her she wanted all her children to have a share of her estate.

The judge found that the will was therefore executed without knowledge and approval and was not therefore valid.

Source: Private Client Library Content