Background

This case concerned the estate of Edward Henry Charles Smith (‘’the Deceased’’) who was the late great uncle of the Claimant, Gavin Boast (“Gavin”). The Deceased made two wills; one dated 15 March 2006 the other dated 11 June 2013.

The Deceased had a close and trusting relationship with Gavin so much so that under the 2006 will he was the sole executor and sole beneficiary.

In late 2011 to early 2012, due to not coping living alone, the Deceased went to live with his nephew and partner. Following a visit from his GP the Deceased was described as ‘increasingly confused, paranoid ideas... lucid but disorientated with time and space’. He also had fixed ideas about people preventing him having tablets. There was evidence that these paranoid delusions continued to increase.

In March 2012 the Deceased contacted his solicitor expressing his wish to make a new will benefitting his sisters. Having been informed by Gavin that the Deceased had been diagnosed with dementia the solicitor sought the advice of a doctor. The doctor was concerned for the Deceased’s mental capacity expressing ‘I do not believe that he has testamentary capacity and I think it is extremely unlikely that he would ever regain that testamentary capacity’.

In April 2013 the Deceased contacted his solicitor to change his will once again. The solicitor told the Deceased that it was essential that a medical opinion was sought prior to the making of a new will.

In June 2013 the solicitor attended the Deceased’s home in order to execute the new will. When questioned the Deceased told his solicitor that he had met with a doctor earlier that day and assured him that there was no cause for concern regarding his mental capacity. The solicitor accepted this without any attempt to conduct further investigations even though only the day before he had received a letter from the Deceased which contained evidence of paranoid delusions regarding Gavin. The Solicitor then witnessed further delusions during this meeting however, the solicitor took the Deceased’s word for it and went ahead and allowed the Deceased to execute the new will.

The 2013 will

Under the 2013 will Gavin remained the sole executor however this will would now entitle the Deceased’s sisters to receive the residuary estate and Gavin to receive a legacy of only £15,000.00.

The Claim

Following the death of the Deceased who died in January 2016 Gavin made a claim against the 2013 will saying that the 2006 was the last valid will made by the Deceased. The claim was made on the basis that the Deceased lacked the requisite capacity to make the will.

The test for testamentary capacity - Banks v Goodfellow (1869-70) LR 5 QB 549

The following is the appropriate test to be satisfied for a will to be valid:

• The Testator must appreciate the nature and consequence of making a will
• The Testator must understand the extent of his or her property
• The Testator must be able to comprehend and appreciate the claims to which they ought to give effect
• The Testator must not be affected by any disorder of the mind or insane delusion

Judgment

The High Court held that the 2013 will was not valid and so the 2006 will applied on the basis that the Deceased had lacked capacity from the year before he made the 2013 will. The Judge found that there was no evidence to show that his condition improved after that time and that the Deceased’s paranoid delusions had had an effect on his relationship with Gavin.

The solicitor failed to investigate the Deceased’s paranoid delusions despite witnessing them. He did not ask any further questions or instruct a qualified medical practitioner to assess whether the Deceased had the capacity to make a new will which the Court concluded he should have done. These failures caused the Court to conclude that the 2013 will was invalid.

Significance

This case highlights the importance of the role of a solicitor when it comes to the making of a will. The solicitor should be satisfied that the Testator has the capacity to make a will. Should the solicitor have any doubts then they should investigate further or refer the matter to a medical professional before the making of a will. Solicitors are not expected to make a medical assessment, but they ought to know when it is appropriate to engage a medical expert. Failure to make the proper assessment or take the appropriate steps can lead to disputes after death and can result in significant legal costs being incurred by a number of parties.

Should you find yourself in a dispute due over the estate of a loved one, contact our specialist team on 0345 872 6666.

This blog was co-authored by Bethannie Byrne and Alison Parry.