Having your will drawn up professionally by a qualified solicitor is always a sensible precaution, especially in later life. In a recent case, the High Court ruled that a retired businessman lacked testamentary capacity when he made a will less than three and a half years before he died at the age of 87.

The man and his first wife were married for nearly 40 years and had four children. After her death he married again. In October 2015 he made a new will, revoking in most respects a will he had made in 2007. The new will made increased provision for his second wife’s family and reduced the amounts left to his children from his first marriage.

The will took two years to finalise and he had given varying instructions as to its contents. It was not drafted by a qualified solicitor and no steps were taken to ensure he had capacity. He was diagnosed with vascular dementia in 2016 and died in March 2019.

His children challenged the 2015 will on the grounds that he had lacked testamentary capacity and had not known and approved its contents. The Court heard evidence from a number of witnesses and from two consultant psychiatrists, who agreed that the man was suffering from dementia by the time the will was made. It also considered correspondence sent and received by the man.

The Court found that there was real doubt about whether the man had testamentary capacity when the will was executed. Although he was able to carry out tasks requiring varying degrees of executive function in the months before and after it was signed, it was a complex document and the Court was not satisfied that he had understood its nature and effect. Concluding that he did not have testamentary capacity, the Court pronounced against the 2015 will and upheld the 2007 will.