When disputes arise as to the validity of wills, the evidence of the deceased’s solicitors can be crucial. In a recent High Court case concerning whether a woman had capacity to revoke her will, the Court attached considerable importance to the evidence of the solicitor who was present at the time.

The woman’s last will, made in 2020, included bequests to two cousins, whom she had known for about 60 years. She did not want to give her sister any money: she had lent her a lot of money over the years and thought that she lived an extravagant lifestyle. After a serious falling out with the cousins in 2021, she went to see her solicitor in November that year to discuss making a new will excluding them.

In January 2022 her solicitor visited her in hospital. During that visit, the solicitor advised her that if she did not want her cousins to benefit from her estate she could tear up the 2020 will, but she would then be intestate and her sister would inherit the estate. She was able to tear the will about three quarters of the way along, and the solicitor helped her tear up the rest of it. However, she began to fall asleep before a new will could be finalised. She died the following month, aged 92. The cousins brought proceedings claiming that the will had not been validly revoked.

The Court found that the solicitor had taken a careful approach to capacity. The woman had been adamant that she did not want the 2020 will in place. After the solicitor had asked her if she would like help to finish tearing up the will, she had looked directly at her and nodded.

The Court concluded that the woman had sufficiently destroyed the will, as it was entirely torn in half. She had properly authorised her solicitor to complete its destruction: her nod was not mere acquiescence but a positive and discernible communication. Noting that she had been specifically advised that destroying the will would stop her cousins from inheriting, and that this accorded with her intentions two months earlier, the Court found that she had had the requisite intention to destroy the will. It had therefore been destroyed pursuant to Section 20 of the Wills Act 1837.

Turning to the question of whether the woman had had capacity to revoke the will, the Court observed that an assertion from a legal professional could not, on its own, be sufficient to establish capacity. The Court took account of a medical report indicating that the woman had lacked capacity to revoke the will when she destroyed it. However, the solicitor had found that the woman had capacity at the beginning of the visit, though it dipped away while she was there. She had known the woman very well for some years and knew of her family relationships, and capacity had been at the forefront of her mind.

The Court found that the woman had had testamentary capacity to revoke the will at the time it was torn up. Her sister would therefore inherit her estate.