Contesting a will: validity in the Court of Appeal

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When someone dies, family members can be dissatisfied with their inheritance. Some can even be convinced that their relative was not mentally capable of making such decisions. What can be done in cases where someone is not simply contesting a will but challenging its very validity?

On 28 January the Court of Appeal heard such a case. The court was asked to rule whether an elderly lady’s will should be declared invalid. They had to decide if her dementia and declining mental state meant she did not have the required mental capacity to make the will, and also, given the circumstances in which it was signed, whether she knew of and approved the contents of her will as the law requires.

The court case

Mrs Burns was in her 80s when she made her will in 2003. In it, she left her entire interest in her home to her son Anthony. Some two years later, Mrs Burns must have had a change of heart because she remade her will and split her interest in the home between her son Anthony and her other son Colin.

Following her death in 2010 there was an argument between her sons about which will should be declared the last will and testament of Mrs Burns. Anthony claimed that the 2005 will should be declared invalid because of Mrs Burns’ mental state at the time it was made and because of the way it was signed. Colin wanted the court to declare that the 2005 was indeed valid and that Mrs Burns did have mental capacity at the time it was signed.

Mrs Burns’ mental state and health at the time that she made the 2005 will

In October 2003 Mrs Burns had experienced problems with her memory and ability to complete relatively simple mental exercises.  This was uncovered in a mini mental state examination carried out by medical professionals.  By the following year she had started attending a day centre which specialised in care of elderly people and those suffering from dementia.  Mrs Burns was said to have quite advanced dementia and memory loss.

The court heard evidence from various sources which shed light on the mental state of Mrs Burns when she made the 2005 will.  The two brothers brought family witnesses to support each of their cases, though the judge largely dismissed their evidence out of hand because these witnesses were not impartial.  Other witnesses such as the day centre manager and Mrs Burns’ solicitor also gave evidence and it was the solicitor’s evidence that clearly made an impression on the court.

However, this is not surprising. The courts have repeatedly said that it is evidence of a person’s mental state on the day that they sign their will and not in the general period leading up to the signing of their will that is important.  Inevitably, this means that the person who is present when the will is signed – often a solicitor – who is best placed to give an opinion on the will maker’s mental capacity.

The court’s findings: mental capacity

The law on whether a person has the mental capacity required to make a will is very well established. It stems from a case decided long ago: Banks v Goodfellow. The fact that the court’s decision in that case has stood the test of time demonstrates how well established the law is on this point.

Essentially that case said that three things were required for a person to be considered of sound mind when making a will:

  1. The will maker must appreciate the effect of their will in that it will distribute their possessions on their death.
  2. The will maker must have an appreciation of the extent of the property and assets that make up their estate.
  3. The will maker must appreciate the moral claims to which their close family and friends may have to receive part of the will maker’s estate.

Looking at the 2005 will itself, the court concluded that it was simple and rational as it split Mrs Burns’ interest in the property equally between her two sons. In law, this leads to a presumption that the will maker had the required mental capacity at the time they made their will. Furthermore, the fact that Mrs Burns had gone back to the solicitors who drafted her 2003 will, collected those documents from them, and instructed them to prepare a new will in different terms demonstrated that she knew what she was doing and that she intended for her 2005 will to replace her original one.

Even though there was strong evidence that Mrs Burns suffered from quite advanced dementia, that she had memory problems, and even though the solicitor who drafted the will gave poor evidence and his notes relating to the 2005 will were poorly made, the court still gave great weight to his conclusion that Mrs Burns did have the required mental capacity at the appropriate time. In this regard, the court sided with Colin and declared the 2005 will valid.

The court’s decision: knowledge and approval

The law says that for a will to be valid the will maker must know of and approve the will’s contents.  If there are circumstances which “excite the suspicion” of the court, then the person who claims the will is valid must prove that the will maker knew of and approved its contents.

There was clear evidence in Mrs Burns’ case that there were circumstances to excite the suspicion of the court:

  • Mrs Burns was elderly and had displayed signs of mental impairment.
  • Colin had accompanied Mrs Burns to the solicitors immediately prior to, and at the time the 2005 will was signed.
  • The letter written by Mrs Burns to the solicitor asking him to prepare a new will was sketchy and in fragile writing, and one of those letters was misdated.

However, the court again found that the evidence of the solicitor who prepared the will – and was present when it was signed – to be decisive. This was because the solicitor confirmed that he read the will to Mrs Burns prior to her signing it and that the will was simple in its contents and effect.

The outcome of the case and what we can learn

The court sided with Colin and declared that the 2005 will of Mrs Burns was valid, and that as such it had replaced and made invalid the 2003 will.

The court used well-established law to reach its conclusion and therefore the case breaks no new ground.  However, there are lessons that can be taken from it.

The case highlights the need for proper consideration when contesting a will, as well as the need for specialist legal advice from solicitors experienced in this area of law. Clearly, Mrs Burns’ sons will have spent a great deal of money bringing this case to court and taking it as far as the Court of Appeal. Perhaps this could have been sensibly avoided if sound legal advice had been taken by Anthony at the outset. What the case does show, however, is that people who suffer from dementia and memory loss can still make valid wills and that medical evidence does not necessarily prove conclusive where mental capacity is concerned. What is important is the evidence of the will maker’s mental capacity at the time they sign their will. In that regard it is the notes made by the witnesses when a will is signed that will prove crucial to a claim that it is or is not valid.

In this case there were a number of criticisms levelled at the solicitor who prepared the 2005 will. His notes were lacking in detail and his approach when taking Mrs Burns’ instructions were not thorough enough or grounded well enough in established practice. The case may have been decided the other way – in favour of Anthony – if the will was not so straightforward and its terms and effects so easily understood by someone with diminished mental function or ability.

If you have concerns about the will of a relative who has died or you believe you are being unfairly treated by a deceased relative then it is very important you seek specialist legal advice immediately. Stowe Family Law’s solicitors are members of STEP and regularly analyse and write about the law. We are able to provide sound, practical and timely legal advice on these matters.  Please do not hesitate to get in touch with us.

Read Burns & Ors v Burns in full here.

Photo by  jochemberends via Flickr

Duncan Watson

Duncan is a solicitor who works across the Stowe Family Law’s Harrogate, Wetherby, and Leeds offices.

He advises clients on wills, estate administration, probate, tax, trusts and lasting powers of attorney.

He has written several articles in legal publications and is a contributing author to a forthcoming legal textbook.

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